Berhan v Westacres Property Consultants Pty Ltd t/as Divine Homes

Berhan and Westacres Property Consultants Pty Ltd t/as Divine Homes were before the court in a matter pertaining to a building dispute under the Home Building Act 1989 (NSW). The plaintiff, Berhan, had engaged the defendant, Westacres, to construct a home. Disputes arose over the quality and completion of the work, leading to a termination of the contract. Berhan subsequently sought relief under the Act and common law, including damages and an order for specific performance.

The court was tasked with determining several legal issues, including whether the termination of the contract was justified under the Act and if so, the appropriate remedy. The court had to consider the terms of the contract, the nature and extent of the defects, and whether the termination was in accordance with the statutory provisions. Furthermore, the court had to assess whether specific performance was an appropriate remedy given the circumstances of the case.

In its judgment, the court found that the termination of the contract was not justified under the Act and that the plaintiff had failed to establish a valid claim for specific performance. The court concluded that the defects identified by Berhan did not warrant termination and that the issues could have been resolved through the contractual dispute resolution process. The court dismissed the application and ordered that if any party wished to seek an order other than each party bearing its own costs, they were to file and serve submissions and any evidence within 21 days. Any responding submissions or evidence were to be filed within a further 7 days, and any submissions regarding costs had to state whether the party consented to the costs being determined on the papers, and if not, why.