Brown v Max Pattison Pty Ltd and Travis-Almond

Craig Brown brought an action against Max Pattison Pty Ltd and Michael Patrick Travis-Almond, seeking a refund of monies paid under a home building contract. The dispute centred on the termination of the contract and the rights of the parties following that termination, particularly in the context of an entire contract with progress payments. Brown had paid Travis-Almond for the construction of a house, but the work was incomplete and unsatisfactory. Travis-Almond argued that Brown was bound by the contract and had no right to a refund.

The court was required to determine whether the entire contract principle applied, and if so, whether there was a substantial failure of consideration that would entitle Brown to a refund. The court considered whether the failure of consideration was such that it rendered the contract ineffective and whether the contract was divisible or entire. Additionally, the court had to consider the effect of the termination of the contract on the right to a refund of monies paid.

The court held that the entire contract principle did apply, but that the failure of consideration was substantial enough to render the contract ineffective. The court found that the contract was not divisible, but that the substantial failure of consideration allowed for a refund of monies paid. The court ordered that Travis-Almond pay Brown $33,858 immediately. The court made no order as to the costs of the proceedings, subject to any application for an alternative costs order. Any such application must be filed and served electronically by a specified date, with any response and further evidence also to be filed by the same date.