Carbone v Fowler Homes Pty Ltd

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Carbone v Fowler Homes Pty Ltd [2023] NSWDC 29

Hearing dates:

16, 17, 18 and 21 November 2022 and 1 February 2023

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

See [102]-[107]

Catchwords:

BUILDING AND CONSTRUCTION – contract – variations – claim of overpayment – where there is dispute about payments made

Legislation Cited:

Australian Consumer Law

Environmental Planning and Assessment Act 1979 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Watson v Foxman (1995) 49 NSWLR 315

Makita v Sproules (2001) 52 NSWLR 705

Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64

Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275

JLW (Vic) Pty Ltd v Tsiligou [1944] 1 VR 237

Troulis v Vamvoukalis [1998] NSWCA 237

McCrohon v Harith [2010] NSWCA 67

Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422

State of New South Wales v Moss (2000) NSWLR 536

Ratcliffe v Evans [1892] 2 QB 524

Category:

Principal judgment

Parties:

Plaintiff: Giuseppe Carbone
Plaintiff: Matthew Carbone
Defendant: Fowler Homes Pty Ltd

Representation:

Counsel:
Plaintiff: Mr P Barham
Plaintiff: Mr P Barham
Defendant: Mr H Stitt

Solicitors:
Plaintiff: Simone Legal
Plaintiff: Simone Legal
Defendant: Branston Neville

File Number(s):

2020/308472
2020/308483

Publication restriction:

None

7JUDGMENT

Introduction

1. These proceedings involve a dispute arising out of contract to construct two duplex homes at Oran Park.

2. There are in fact sets of two proceedings which were heard together, with an order that evidence in one proceeding be evidence in the other.

3. The plaintiff in each case is the client of the builder, which is the defendant. The two plaintiffs are father and son.

4. As the building works approached completion, the parties fell into dispute about the state of accounts between them on each building contract. The plaintiff's alleged that they had overpaid the builder and sought repayment of the alleged overpayment. The builder on the other hand said that the plaintiffs had underpaid, that is to say that the defendant builder was still owed money on each contract. Based on that assertion the builder refused to grant access to the duplexes.

5. Both sets of proceedings were commenced in the Supreme Court, with the primary relief sought being an order for specific performance of the building contracts. The parties resolved that aspect of their dispute by a commercial compromise entered into, on a without admissions basis, pursuant to which the builder agreed to finalise the works, and give possession to the plaintiffs.

6. This sensible commercial approach to the specific performance aspect of the litigation unfortunately did not extend to the balance of the proceedings, that is to say to the resolution of the issue of who owed what to whom. As on any view of it, the sums in dispute were comfortably within the monetary jurisdiction of this Court…