Ashell Homes Constructions Pty Ltd v Kobus

Case [2022] ACTSC 323


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ashell Homes Constructions Pty Ltd v Kobus

Citation:

[2022] ACTSC 323

Hearing Dates:

6 – 10 & 13 December 2021, 27 January 2022

DecisionDate:

22 November 2022

Before:

McWilliam AsJ

Decision:

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

Legislation Cited:

Building Act 2004 (ACT) s 42

Land Titles Act 1925 (ACT) s 107

Cases Cited:

ACN 116 746 859 (formerly known as Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd [2017] NSWSC 1583

Amann Aviation Pty Ltd v Commonwealth (1990) 22 FCR 527
Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; 82 NSWLR 420
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327
Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178
Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693
Cooper v Ungar  (1958) 100 CLR 510
Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882
England v Cowley (1873) LR 8 Ex 126 (Exch)
Haines v Bendall [1991] HCA 15; 172 CLR 60
Holland v Wiltshire  (1954) 90 CLR 409
Joule Ltd v Poole (1924) 24 SR (NSW) 387
Kennedy v Collings Construction Company Pty Ltd (1991) 7 BCL 25
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115
Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19
Kyren Pty Ltd v Wunda Projects Australia Pty Ltd & Ors [2012] SASCFC 23
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560
Maples Winterview Pty Ltd v Liu & Anor [2015] ACTSC 58
Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Mount Bruce Mining Pty…

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Ashell Homes Constructions Pty Ltd v Kobus [2022] ACTSC 323
Case
[2022] ACTSC 323
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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.

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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