Construction & Design Australia Pty Ltd v Robinson (No 2)

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Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Construction & Design Australia Pty Ltd v Robinson (No 2) [2024] NSWSC 376
Hearing dates: 18 – 21, 25 March 2024; further written submissions 27 & 28 March, 5 & 8 April 2024; further argument 9 April 2024
Decision date: 11 April 2024
Jurisdiction:Common Law
Before: Stevenson J
Decision:

Builder entitled to recover balance of sum due under building contract less cost of rectifying bowed wall – owners’ misleading or deceptive conduct not established

Catchwords:

BUILDING AND CONSTRUCTION – Contract – cost plus contract for construction of residence – alleged breach of contract – whether builder entitled to claim payment of outstanding invoices – whether builder entitled to claim damages for loss of profits

BUILDING AND CONSTRUCTION – Australian Consumer Law – whether misleading or deceptive conduct – whether builder represented that cost of building would be around and not substantially more than $550,000 or $750,000 – whether owners relied on any such representation when deciding to enter the contract

BUILDING AND CONSTRUCTION – Contract – damages – whether “alternative transaction” case or “no transaction” case available – where damages claimed “because” of the alleged misleading or deceptive conduct

BUILDING AND CONSTRUCTION – Contract – variation – oral variation – whether owners agreed to substitute blockwork for Rediwall construction – whether builder can rely on oral variation in defence of claim by owner

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law

Home Building Act 1989 (NSW)

Home Building Regulation 1997 (NSW) (repealed)

Home Building Regulation 2014 (NSW)

Cases Cited:

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114

Australian Competition and Consumer Commission v Woolworths Ltd [2019] FCA 1039

Australian Development Corporation Pty Ltd v White [2001] NSWCA 9

Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36

Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238

Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60

Casbee Properties Pty Ltd v Patoka Pty Ltd [2003] NSWCA 361

Commonwealth Bank of Australia v Rafidi [2016] NSWSC 1931

Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20

Gan v Xie [2023] NSWCA 163

Gerrard v Slamar [2004] WASCA 253

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2018] FCA 1

JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Jones v Schiffmann (1971) 124 CLR 303; [1971] HCA 52

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

Lin v Zheng [2023] NSWCA 174

Mills v Walsh [2022] NSWCA 255

Paraiso v CBS Build Pty Ltd [2020] NSWSC 190

Petropoulos v CPD Holdings…

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Details
Case
[2024] NSWSC 376
Decision Date

CaseChat Overview and Summary

Construction & Design Australia Pty Ltd (CDA) commenced proceedings against Robinson, the owner of a residence, seeking payment of outstanding invoices and damages for loss of profits. CDA alleged that Robinson had breached the contract and engaged in misleading or deceptive conduct by representing that the cost of building would be around and not substantially more than $550,000 or $750,000. Robinson claimed that the builder did not adhere to the terms of the contract and failed to deliver the house within the agreed timeframe. The court was required to determine whether CDA was entitled to payment of outstanding invoices and damages for loss of profits, whether CDA engaged in misleading or deceptive conduct, and whether CDA could rely on an oral variation to the contract.

The court found that CDA was entitled to payment of outstanding invoices and damages for loss of profits. CDA established that the contract was a cost-plus contract, and Robinson had not disputed that CDA had provided services under the contract. The court also found that CDA engaged in misleading or deceptive conduct by representing that the cost of building would be around and not substantially more than $550,000 or $750,000, and that Robinson relied on this representation when deciding to enter the contract. However, the court held that the misleading or deceptive conduct did not cause the loss of profits claimed by CDA. The court further found that CDA could not rely on an oral variation to the contract as there was insufficient evidence to establish that Robinson had agreed to substitute blockwork for Rediwall construction.

The court ordered that CDA was entitled to payment of outstanding invoices and damages for loss of profits. However, the court reduced the amount of damages awarded by CDA due to the failure to establish causation between the misleading or deceptive conduct and the loss of profits. The court also found that CDA could not rely on an oral variation to the contract as there was insufficient evidence to establish that Robinson had agreed to substitute blockwork for Rediwall construction. The court held that the contract remained valid and enforceable, and Robinson was liable to pay CDA for the services provided under the contract.

Orders

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Evidence

Evidence Before The Court

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