Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 Hearing dates: 4 March 2021;
written submissions 8, 17, 19 March 2021Decision date: 14 April 2021 Before: Macfarlan JA at [1];
Leeming JA at [2];
McCallum JA at [97].Decision: 1. Grant leave to amend, in terms of the draft notice of appeal annexed to the appellants’ submissions in reply filed 1 March 2021, and dispense with the requirements of filing and service.
2. Appeal allowed in part, confined to ground 10.
3. Set aside the judgment for the first defendant in the sum of $76,510.68 entered on 7 August 2020, and in lieu thereof enter judgment for the first defendant in the sum of $50,097.32.
4. Otherwise dismiss the appeal.
5. The appellants to pay 75% of the respondents’ costs of the appeal.
Catchwords: CONTRACT – cost plus contract for building work – claim in debt following non-payment of final invoice – belated submission that condition precedent requiring provision of details of cost of building works accompany builder's invoice not satisfied – submission not made to trial judge – whether point available on appeal
CONTRACT – building contract – claim for defective work – owner directed re-pouring of lowered slab – whether that work was a consequence of incorrectly built ceiling – whether owner entitled to damages
CONTRACT – quantification of damages – building contract – delay in performance – whether owner entitled to damages for diminution in market value of residential house – whether owner entitled to general damages for limited use and loss of amenity while building works continued
PLEADINGS – conditions precedent – implied allegation that all conditions precedent to plaintiffs’ claim satisfied – obligation on defendant to identify with specificity non-satisfaction of condition precedent to plaintiffs’ claim – Uniform Civil Procedure Rules 2005 (NSW) rr 14.11, 14.14 – history of rules – consequences of failure to comply with rules
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 7, 32
Civil Liability Act 2002 (NSW), Pt 2
Civil Procedure Act 2005 (NSW), s 56
Common Law Procedure Act 1852 (UK), s 57
Common Law Procedure Act 1853 (NSW), s 52
Common Law Procedure Act 1899 (NSW), s 66
Home Building Act 1989 (NSW), s 8A, 10, 18G
Judicature Act 1875 (UK), s 16
Rules of the Supreme Court 1883 (UK) Ord XIX r 14
Supreme Court Act 1970 (NSW), ss 101, 122, Schedule 4
Uniform Civil Procedure Rules 2005 (NSW), rr 14.11, 14.14, 51.36
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Archibald v Powlett (2017) 53 VR 645; [2017] VSCA 259
Arnold v Britton [2015] AC 1619; [2015] UKSC 36
Ashby v Bates (1846) 15 M & W 589
Bond Air ServicesLd v Hill [1955] 2 QB 417
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- Case
- [2021] NSWCA 57
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the builder's claim in debt was defeated by its alleged failure to provide specific cost details accompanying its final invoice, a submission not raised at trial. Further, the court had to consider whether the owner was entitled to damages for the re-pouring of a slab, and if so, whether this was a consequence of an incorrectly built ceiling, and whether the owner could claim damages for delay, including diminution in market value and loss of amenity. The court also examined the application of the Uniform Civil Procedure Rules 2005 (NSW) regarding the pleading of conditions precedent and the consequences of failing to plead non-satisfaction with specificity.
The Court of Appeal allowed the appeal in part, specifically in relation to the builder's claim for debt. The court held that the builder's failure to provide detailed cost breakdowns with its invoice did not preclude its claim, particularly as this point was not raised with sufficient specificity in the pleadings or at trial, contrary to the requirements of the Uniform Civil Procedure Rules. The court found that the owner was entitled to damages for defective work, but reduced the amount awarded by the trial judge. The appeal was otherwise dismissed, with the court upholding the trial judge's decision on other grounds. The appellants were ordered to pay 75% of the respondents' costs of the appeal.
Orders
Orders of the court
1. Grant leave to amend, in terms of the draft notice of appeal annexed to the appellants’ submissions in reply filed 1 March 2021, and dispense with the requirements of filing and service.
2. Appeal allowed in part, confined to ground 10.
3. Set aside the judgment for the first defendant in the sum of $76,510.68 entered on 7 August 2020, and in lieu thereof enter judgment for the first defendant in the sum of $50,097.32.
4. Otherwise dismiss the appeal.
5. The appellants to pay 75% of the respondents’ costs of the appeal.
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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