Dimitropoulos v Capitol Constructions Pty Ltd; Capitol Constructions Pty Ltd v Dimitropoulos

[2016] NSWCATCD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dimitropoulos v Capitol Constructions Pty Ltd; Capitol Constructions Pty Ltd v Dimitropoulos [2016] NSWCATCD 61

Hearing dates:

11 August 2015 and 28 October 2015(Final submissions received 5 February 2016)

Decision date:

29 June 2016

Jurisdiction:

Consumer and Commercial Division

Before:

T Simon, Senior Member

Decision:

1. The homeowners are to pay the builder the amount of $73,968.96 immediately.

 

2. The builder is to provide to the homeowner all original certification which they hold which is required by the relevant authority to issue an occupation certificate for the property pursuant to the Environmental Planning & Assessment Act immediately.

3. The parties are to provide to the Tribunal and each other, either in person or by post, submissions and documents in relation to costs by 15 July 2016.

4. The parties are to provided to the Tribunal and each other, either in person or by post, submissions and documents in reply on costs by 29 July 2016.

5. Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 29 July 2016, setting out the reasons why and the registry will advise in due course.

Catchwords:

Home Building, wrongful termination, substantial breach, serious breach, anticipatory breach. repudiation, abandonment, unlicensed sub-contractors, variations, defects.

Legislation Cited:

Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)
Home Building Regulation 2004 (NSW)

Cases Cited:

Afovos Shipping v Pagnan [1983] 1 WLR 195 (HL),37
Balog v Crestani [1975] 132 CLR 289
Champion Homes Sales Pty Limited v DCT Projects Pty Limited [2015] NSWSC 616
Elachi v Five Star Aluminium Pty Ltd (Home Building) [2006] NSWCTTT 415
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61; (2007) 233 CLR 115
National Engineering Pty Limited v Chilco Enterprises Pty Limited t/as Trojan Contracting [2001] NSWCA 291
Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8
Ryder and Anor v Frohlich and Anor [2004] NSWCA 472
Universal Cargo Carriers Corp. v Citati [1957] 2 QB 401
Zeman v Bollard [2015] NSWCATCD 13

Category:

Principal judgment

Parties:

Parties in HB 14/44611 (homeowners application)
Spiro Dimitropoulos (first applicant)
Anna Dimitropoulos (second applicant)
Capitol Construction Pty Ltd trading as Vogue Homes (respondent)

  Parties in HB 14/56871 (builder’s application)
Capitol Construction Pty Ltd trading as Vogue Homes (applicant)
Spiro Dimitropoulos (respondent)
Anna Dimitropoulos (second respondent)

Representation:

Counsel:T Davie - for the homeowners
D Hand – for the builder
Solicitors:Peter Merity Solicitors – for the homeowners
Adams Partners Lawyers – for the builder

File Number(s):

HB 14/44611 & HB 14/56871

Publication restriction:

Nil

Reasons for the Decision

1. These reasons relate to two applications. Matter HB 14/44611 is an application made by the homeowner. Application HB 14/56871 was a subsequent application made by the builder.

The Applications

2. For ease of reference the parties shall be referred to as builder and homeowners.

3. The initial application was made by the homeowners application on 9…