CITATION: Alexander & Anor v Gregoriou & Ors [2010] NSWDC 15 HEARING DATE(S): 19 - 22 October 2009 and 6 November 2009
JUDGMENT DATE:
22 February 2010JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ DECISION: (1) The first and second plaintiffs are entitled to a verdict against the second and third defendants on the claim in the amount of $34,335.62.
(2) Liability of the second and third defendants to be apportioned between them on judgment in the amount of $17,167.81 for each.
(3) The first defendant is entitled to a verdict against the first and second plaintiffs on the claim.
(4) The cross-defendants on each of the three respective cross-claims are entitled to a verdict against the cross-claimants.
(5) Parties to be heard on interest and costs before final orders are made.CATCHWORDS: BUILDING CONTRACTS - Oral contracts with project manager and builder by owners for performance of residential building work - Contractual relationship between parties - Respective obligations of project manager and builder - Unlicensed contractors - Failure to obtain home warranty insurance - Whether building contracts enforceable - Whether owners can recover from contractors monies already paid by them - Remuneration to which contractors entitled from owners for work done - Quantum meruit - Status of contractors' unpaid progress claims - Defective work - Cost of rectification work - Breach of contract - Breach of statutory warranties - Cross-claims for indemnity and/or contribution - Whether GST payable on award of damages - Proportionate liability LEGISLATION CITED: A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 9(5) and 10(4)
Builders Licensing Act 1971, s 45
Civil Liability Act 2002, ss 34(1)(a), 34(2), 35(1) and Pt 4
Contracts Review Act 1980, s 7
Fair Trading Act 1987, s 42
Home Building Act 1989, ss 3(1), 4(1), 5(1), 5(2), 7(1), 7(2), 7AA(1), 7A, 10(1), 18B, 92(1)(b), 92(2)(a), 92(3), 94(1), 94(1A), 94(2), 94(3) and 120(4)
Home Building Regulation 2004, cl 9(1)(g)(iii)
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Trade Practices Act 1974 (Cth), s 52CASES CITED: Brodyn Pty Ltd t/as Time Cost & Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273
Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312
Lee Gleeson Pty Ltd v Sterling Estates Pty Ltd (1991) 23 NSWLR 571
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Pender v Robwenphi Pty Ltd [2008] NSWSC 1144
Trimtor Building Consultants Pty Ltd v Hilton [1983] 1 NSWLR 259
Walter Construction Group Ltd v Walker Corporation Ltd [2001] NSWSC 283
155
Yorke v Lucas (1985) 158 CLR 661PARTIES: Alice Alexander - First Plaintiff/First Cross-Defendant to First Cross-Claim
John Alexander - Second Plaintiff/Second Cross-Defendant to First Cross-Claim
Linda Andrea Gregoriou - First Defendant/Second Cross-Claimant to First Cross-Claim/First Cross-Claimant to Second Cross-Claim/First Cross-Defendant to Third Cross-Claim
Linda Gregoriou Pty Limited - Second Defendant/First Cross-Claimant to First Cross-Claim/Second Cross-Claimant to Second Cross-Claim/Second Cross-Defendant to Third Cross-Claim
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Details
- Case
- [2010] NSWDC 15
- Decision Date
CaseChat Overview and Summary
The case of Alexander & Anor v Gregoriou & Ors was heard in the Supreme Court of New South Wales. The plaintiffs, Alexander and another party, brought an action against the defendants, Gregoriou and others, regarding issues related to a residential building project. The plaintiffs sought recovery of payments made to unlicensed contractors and the cost of rectifying defective work, as well as an assessment of the defendants' entitlement to remuneration for work performed. The defendants, in turn, made cross-claims for indemnity and contribution against the plaintiffs. The court was tasked with determining the enforceability of the building contracts, the respective obligations of the project manager and builder, and the quantum of damages and costs to be awarded.
The legal issues that arose in the case included the validity of the building contracts given the involvement of unlicensed contractors and the failure to obtain home warranty insurance, as well as the enforceability of the contracts in light of these circumstances. Another issue was whether the plaintiffs could recover from the contractors the monies already paid to them, and the extent to which the contractors were entitled to remuneration for the work done, considering the defective nature of the work. The court also had to determine the status of the contractors' unpaid progress claims and the cost of rectification work. Additionally, the court needed to assess the liability for breaches of contract and statutory warranties, and the validity of the cross-claims for indemnity and contribution. Finally, the court had to decide whether GST was payable on the award of damages and how liability should be apportioned.
In its judgment, the Supreme Court of New South Wales found that the building contracts were enforceable despite the involvement of unlicensed contractors and the absence of home warranty insurance. The court held that the plaintiffs could recover from the contractors the monies already paid, and assessed the contractors' entitlement to remuneration for the work done on a quantum meruit basis. The court found that the defective work resulted in a breach of contract and statutory warranties by the contractors, and accordingly, the plaintiffs were entitled to recover the cost of rectification work. The cross-claims for indemnity and contribution were dismissed. The court also ruled that GST was payable on the award of damages and apportioned the liability between the defendants accordingly.
The court ordered that the plaintiffs were entitled to a verdict against the second and third defendants in the amount of $34,335.62, with liability to be apportioned equally between the second and third defendants. The first defendant was found to be entitled to a verdict against the plaintiffs. The cross-defendants were awarded a verdict against the cross-claimants on each of the three respective cross-claims. The parties were to be heard on the issue of interest and costs before final orders were made.
The legal issues that arose in the case included the validity of the building contracts given the involvement of unlicensed contractors and the failure to obtain home warranty insurance, as well as the enforceability of the contracts in light of these circumstances. Another issue was whether the plaintiffs could recover from the contractors the monies already paid to them, and the extent to which the contractors were entitled to remuneration for the work done, considering the defective nature of the work. The court also had to determine the status of the contractors' unpaid progress claims and the cost of rectification work. Additionally, the court needed to assess the liability for breaches of contract and statutory warranties, and the validity of the cross-claims for indemnity and contribution. Finally, the court had to decide whether GST was payable on the award of damages and how liability should be apportioned.
In its judgment, the Supreme Court of New South Wales found that the building contracts were enforceable despite the involvement of unlicensed contractors and the absence of home warranty insurance. The court held that the plaintiffs could recover from the contractors the monies already paid, and assessed the contractors' entitlement to remuneration for the work done on a quantum meruit basis. The court found that the defective work resulted in a breach of contract and statutory warranties by the contractors, and accordingly, the plaintiffs were entitled to recover the cost of rectification work. The cross-claims for indemnity and contribution were dismissed. The court also ruled that GST was payable on the award of damages and apportioned the liability between the defendants accordingly.
The court ordered that the plaintiffs were entitled to a verdict against the second and third defendants in the amount of $34,335.62, with liability to be apportioned equally between the second and third defendants. The first defendant was found to be entitled to a verdict against the plaintiffs. The cross-defendants were awarded a verdict against the cross-claimants on each of the three respective cross-claims. The parties were to be heard on the issue of interest and costs before final orders were made.
Orders
Orders of the court
(1) The first and second plaintiffs are entitled to a verdict against the second and third defendants on the claim in the amount of $34,335.62.
(2) Liability of the second and third defendants to be apportioned between them on judgment in the amount of $17,167.81 for each.
(3) The first defendant is entitled to a verdict against the first and second plaintiffs on the claim.
(4) The cross-defendants on each of the three respective cross-claims are entitled to a verdict against the cross-claimants.
(5) Parties to be heard on interest and costs before final orders are made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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