The parties are directed to bring in short minutes of order within 14 days to give effect to these reasons, including:
(1) The entry of judgment for the defendants in the sum of $25,089.35 plus interest at the rates set out in Schedule 2 to the Court Procedures Rules 2006 (ACT);
(2) The removal of Caveat no. 3032521 pursuant to s 107(2)(b) of the Land Titles Act 1925 (ACT); and
(3) Any orders for costs, and in the event of disagreement, the proposed timetable for resolving the question of costs, either on the papers or by way of further oral hearing.
Catchwords:
CONTRACT – REPUDIATION – building contract – where work done by builder departed from contractual obligations over a period of time – whether breaches individually or cumulatively amounted to repudiation – where builder’s conduct evinced an intention to observe its contractual obligations only when it suited the builder to do so – repudiation established
TORT – CONVERSION – building site – where building contract terminated – where builder prevented from collecting scaffolding, tools and equipment from site – whether owner deliberately exercised dominion over the items to the exclusion of the builder
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ashell Homes Constructions Pty Ltd v Kobus [2022] ACTSC 323
Case
[2022] ACTSC 323
Decision Date
CaseChat Overview and Summary
The case before the court involved Ashell Homes Constructions Pty Ltd, the plaintiff, and Kobus, the defendant. The dispute centred on a building contract where the defendant, as the builder, allegedly deviated from the contractual obligations over a period of time. The plaintiff sought a declaration of repudiation of the contract and damages for the defendant's actions. The court was required to determine if the breaches, individually or cumulatively, constituted a repudiation of the contract by the builder. Additionally, the court had to decide if the plaintiff had deliberately exercised dominion over the defendant’s tools and equipment on the building site, which amounted to conversion.
The court considered the evidence and submissions from both parties to ascertain if the builder’s conduct showed an intention to only comply with contractual obligations when convenient. The court examined whether the builder's actions over time, which included numerous departures from the contract, demonstrated a clear intention to repudiate the contract. The plaintiff argued that the builder's conduct showed a pattern of non-compliance, leading to the conclusion that the builder intended to perform the contract only when it suited them. The court found that the builder's actions amounted to a repudiation of the contract.
In its judgment, the court ruled in favour of the plaintiff, establishing that the builder had repudiated the contract. The court also found that the plaintiff did not convert the defendant's tools and equipment by deliberately exercising dominion over them. The court ordered judgment for the plaintiff in the sum of $25,089.35 plus interest and directed the removal of a caveat from the land titles registry. Further, the court directed the parties to agree on the costs or propose a timetable for further proceedings if they could not agree on the matter of costs.
Orders
Orders of the court
The parties are directed to bring in short minutes of order within 14 days to give effect to these reasons, including:
(1) The entry of judgment for the defendants in the sum of $25,089.35 plus interest at the rates set out in Schedule 2 to the Court Procedures Rules 2006 (ACT);
(2) The removal of Caveat no. 3032521 pursuant to s 107(2)(b) of the Land Titles Act 1925 (ACT); and
(3) Any orders for costs, and in the event of disagreement, the proposed timetable for resolving the question of costs, either on the papers or by way of further oral hearing.