Dewu Pty Ltd v Fabiano

The case of Dewu Pty Ltd v Fabiano was heard in the Supreme Court of Victoria, with Dewu Pty Ltd, the plaintiff, being the proprietor of a property, and Fabiano, the defendant, being the builder engaged to carry out works. The dispute arose from the circumstances surrounding the termination of the contract between the parties, with each claiming to have validly terminated the agreement. The court was required to determine whether the proprietor had the right to terminate the contract due to the builder's non-compliance with the terms regarding the invoices, and whether the builder was entitled to terminate the contract following the proprietor's actions. Additionally, the court needed to ascertain whether the proprietor was liable for damages due to alleged defects in the works completed by the builder.

The court examined the terms of the contract and found that the provision regarding the invoices was facultative rather than prescriptive. The court concluded that the proprietor's refusal to pay due to the non-compliance of the invoices with the contract terms amounted to a breach of contract. As a result, the builder validly issued a contractual notice of suspension of works in response. The court further determined that the proprietor's re-taking of possession of the site resulted in practical completion under the terms of the contract, rendering the proprietor's later purported termination invalid. Consequently, the builder was entitled to treat the purported termination as repudiation and validly terminate the contract. The builder was thus successful in its cross-claim for damages.

The court considered the expert evidence presented regarding the alleged defects in the works carried out by the builder. It found that the works complied with the terms of the contract and that the alleged defects often related to future works that the builder had not yet been required to perform. Consequently, the allegations of defective work were not substantiated, and the proprietor was not entitled to damages. In summary, the court ruled in favour of the builder, finding that it was entitled to terminate the contract validly and to recover damages from the proprietor.