Cappello v Hammond & Simonds NSW Pty Ltd

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.