Cappello v Hammond & Simonds NSW Pty Ltd

The appeal concerned a dispute arising from a cost-plus building contract between the builder, Hammond & Simonds NSW Pty Ltd (the first defendant), and the owner, Mr. Cappello (the plaintiff). The plaintiff claimed damages for defective work and delay, while the builder sought to recover the outstanding amount of its final invoice. The primary issues before the Court of Appeal were whether the builder had satisfied a condition precedent requiring the provision of cost details with its invoice, and whether the owner was entitled to damages for defective work and delay.

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.