Cappello v Hammond & Simonds NSW Pty Ltd - [2020] NSWSC 1021

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021
Hearing dates: 27 to 29 July 2020
Decision date: 07 August 2020
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1) Judgment for the first defendant in the sum of $76,510.68;
(2) Order that the proceedings against the second defendant be dismissed;
(3) Direct that (a) the defendants serve and provide to my Associate written submissions on the question of costs not exceeding 5 pages by 14 August 2020; (b) that the plaintiffs serve and provide to my Associate any submissions in response not exceeding 5 pages by 21 August 2020; (c) that the defendants serve any provide to my Associate any submissions in reply not exceeding 1 page by 26 August 2020; (d) the question of costs be determined on the papers.

Catchwords:
BUILDING AND CONSTRUCTION – Where damages for work done but not invoiced sought to be proved on a quantum meruit basis – Damages for delay – Where loss not established – Where loss too remote – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B.
CONTRACT – Whether contract validly terminated – Where liquidated damages clause provides for nominal amount – Whether provision relating to liquidated damages provided an exclusive remedy for delay and, if it did, whether it was rendered void by the Home Building Act 1989 (NSW), s 18G.

Legislation Cited:
Home Building Act 1989 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 4
Hadley v Baxendale (1854) 9 Ex 341; (1854) 156 ER 145
Hobbs v London and South Western Railway Co (1875) LR 10 QB 111
J-Corp Pty Ltd v Mladenis [2009] WASCA 157
Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897
Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1; [2019] HCA 32
Pigott Foundations Ltd v Shepherd Construction Ltd (1994) 67 BLR 48
Temloc Ltd v Errill Properties Ltd (1987) 39 BLR 30
Wentworth Shire Council v Bemax Resources Ltd (2013) 278 FLR 264, [2013] NSWSC 1047

Texts Cited:
J D Heydon, Heydon on Contract, Law Book Co, 2019
Rawlinsons Australian Construction Handbook 2018 (36th Ed, Rawlinsons Publishing)

Category: Principal judgment
Parties: Rosario Cappello (First Plaintiff) (Self Represented)
Maria Cappello (Second Plaintiff)
Hammond & Simonds NSW Pty Limited (First Defendant)
John Re (Second Defendant)
Representation:
Counsel:
In Person (First Plaintiff)
DP O’Connor (Defendants)
Solicitors:
Self Represented (Plaintiffs)
Adam & Partners Lawyers (Defendants)

File Number(s): 2019/8265
Publication restriction: None

Judgment

Introduction

These proceedings concern a construction contract entered into on 1 September 2017 (the Contract) by which the first defendant, Hammond & Simonds NSW Pty Ltd (the Builder), agreed on a costs plus basis to undertake renovation work to the ground floor of the plaintiffs’ two storey residence in Empire Street, Haberfield…

Grounds of appeal

[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.

Keep reading for free

Create a free CaseChat account to read Cappello v Hammond & Simonds NSW Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1021
Decision Date: 07 August 2020

CaseChat Overview and Summary

The plaintiff, Cappello, sought damages against the defendants, Hammond & Simonds NSW Pty Ltd, for work performed under a construction contract. The plaintiff claimed for work done but not invoiced, as well as damages for delay and breach of statutory warranties under the Home Building Act 1989 (NSW). The case was heard in the Supreme Court of New South Wales. The defendants argued that the contract was validly terminated, and that any damages claim was barred by the terms of the contract, including the provision for liquidated damages.

The primary legal issues before the court were whether the contract was validly terminated, the enforceability of the liquidated damages clause, and the applicability of statutory warranties. The court had to determine if the liquidated damages clause provided an exclusive remedy for delay, and if it did, whether it was rendered void by section 18G of the Home Building Act 1989 (NSW). Additionally, the court needed to decide whether the plaintiff could claim damages for work not invoiced on a quantum meruit basis, and if the claimed losses were too remote or not sufficiently established.

The court held that the contract was validly terminated, and that the provision relating to liquidated damages provided an exclusive remedy for delay. The court further held that section 18G of the Home Building Act 1989 (NSW) did not render the liquidated damages clause void. Regarding the claim for work not invoiced, the court found that the plaintiff had not established the loss claimed and that the losses were too remote. Consequently, the plaintiff's claim for damages on a quantum meruit basis was dismissed. The court also found that the statutory warranties had been breached but did not award damages as the plaintiff had not established any loss.

The court ordered that the defendants pay the plaintiff the amount due for work performed under the contract but did not award any additional damages for work not invoiced or for delay. The court also confirmed that the contract termination and the liquidated damages clause were valid and enforceable.

Orders