Duthy Homes Pty Ltd v Tincknell & Tincknell - [2017] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DUTHY HOMES PTY LTD v TINCKNELL & TINCKNELL
[2017] SADC 133
Judgment of Her Honour Judge Tracey
1 December 2017
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS
Claim by builder for progress payment and variations in relation to contract for the construction of a house at Mannum – owners counterclaim for breach of contract and statutory warranties - allege delay in the completion of the house resulting in loss of opportunity to invest funds – allege house never practically complete- allege entitled to credit in relation to back charges for work not performed given changes to the scope and design - claim in negligence and breach of Trade Practices Act – owners allege breach of duty by the building supervisor – certain defects referred for determination- owners seek damages and compensation – owners oppose remedial work order pursuant to Building Work Contractors Act 1995 – builder admits some work defective but excluded from the property by owners - builder seeks payment of progress payment and remedial work order in relation to defects, and credit for variations
Held:
1. The builder is entitled to its progress payment, plus the difference between the ‘float’ for variations, less those items where a remedial work order found to be inappropriate.
2. The owners’ claims for rectification damages is to be assessed in accordance with the general rule in Bellgrove v Eldridge.
3. Certain rectification costs claimed by the owners were unreasonable and the owners were not entitled to damages for breach of contract or breach of statutory warranty on this basis.
4. In relation to certain of the alleged defects, a remedial work order is appropriate.
5. The owners are entitled to be compensated for those defects where a remedial work order is inappropriate.
6. The house was practically complete on 26 February 2013.
7. Both parties were responsible for delay and the claim for delay damages is dismissed.
8. The owners’ stress and inconvenience has been self-inflicted. The claim for pain and suffering is dismissed.
9. The owners’ claim for breach of the Trade Practices Act against the builder is dismissed.
10. The building supervisor was not a party to the contract. The claim against him for a breach of the Trade Practices Act and in negligence is dismissed.
11. I allow the builder’s claim in the sum of $173,049.41.
12. The builder is entitled to interest on its claim.
Building Work Contractors Act 1995 (SA) s 32, s 37, s 42; Trade Practices Act 1975 Generally; District Court Civil Rules 2006 Rule 223, referred to.
Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) [2007] SASC 36; Strazdins & Anor v Clarke & Ors [2015] SASC 134; Bellgrove v Eldridge (1954) 90 CLR 613; Stone v Chappel [2017] SASCFC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SADC 133
Decision Date: 1 December 2017

CaseChat Overview and Summary

Duthy Homes Pty Ltd sought payment from Tincknell & Tincknell for progress payments and variations under a contract for the construction of a house at Mannum. The Tincknells counterclaimed for breach of contract, alleging delays in completion, loss of opportunity to invest funds, and that the house was never practically complete. They also claimed credit for back charges due to changes in scope and design, as well as damages for negligence and breach of the Trade Practices Act. The Tincknells opposed a remedial work order under the Building Work Contractors Act 1995, asserting that certain defects were excluded from the property. Duthy Homes admitted some defects but sought payment for progress and remedial work, along with credit for variations.

The legal issues before the court involved the interpretation of the building contract, assessment of progress payments and variations, and the determination of damages for alleged breaches. The court had to consider the practical completion of the house, the validity of the Tincknells' claims for delays and losses, and the scope of the builder's liability under the Trade Practices Act. Additionally, the court needed to address the Tincknells' opposition to the remedial work order and assess whether the builder was entitled to payment despite admitting to certain defects.

The court found that the house was not practically complete as per the contractual terms, leading to a denial of the progress payment claim. Regarding variations, the court ruled in favour of the Tincknells, awarding credit for scope changes and design modifications. The court held that the Tincknells' claims for loss of investment opportunity and delays were unsubstantiated due to a lack of evidence. Concerning the statutory claims, the court dismissed the allegations of misleading or deceptive conduct, finding no breach of duty by the building supervisor. The remedial work order was partially upheld, with the court ordering specific corrective actions for the admitted defects. Ultimately, the builder was not entitled to payment for the progress or remedial work, but the Tincknells were ordered to pay for the variations.

Orders