Medium Neutral Citation: Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546
Hearing dates: 10 to 13, 18 to 20 October 2017
Decision date: 17 November 2017
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
1.   Judgment in favour of the plaintiffs against the first defendant in the sum of $804,703.55.

2.   Judgment in favour of the plaintiffs against the second defendant in the sum of $477,013.45.
3.   Judgment in favour of the plaintiffs against the third defendant in the sum of $467,950.00.
Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach
Legislation Cited: Australian Consumer Law s 18
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW)
Home Building Act 1989 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Auburn Municipal Council v ARC Engineering Pty Ltd [1973] 1 NSWLR 513
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54
Hampic v Adams [1999] NSWCA 455
Kavanagh v Blissett [2001] NSWCA 79
Lagden v O’Connor [2004] 1 AC 1067; [2003] UKHL 64
Redmond Family Holdings v GC Access Pty Ltd [2016] NSWSC 796
Roluke Pty Ltd & Anor v Lamaro Consultants Pty Ltd & Anor [2007] NSWSC 349
Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333
Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353
Category: Principal judgment
Parties: Toni Elias (First Plaintiff)
Saide Elias (Second Plaintiff)
Alloha Formwork & Construction Pty Ltd (First Defendant)
Antonios Boumelhem (Second Defendant)
Monzer Farah (Third Defendant)
Representation:
Counsel:
AM Pickles SC with M McMahon (Plaintiffs)
J Phillips SC (First and Second Defendants)
JA Steele with L Robb Vujcic (Third Defendant)
Solicitors:
Elias Gates & Associates (Plaintiffs)
Mitry Lawyers (First and Second Defendants)
Gilchrist Connell (Third Defendants)

File Number(s): 2016/152816
Publication restriction: None

Judgment

Introduction

The plaintiffs, Mr and Mrs Elias, operate a bakery in Belfield. Their native…

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.

Continue reading Elias v Alloha Formwork & Construction Pty Ltd

Details

AGLC: Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546
Case: [2017] NSWSC 1546
Decision Date: 17 November 2017

CaseChat Overview and Summary

Elias v Alloha Formwork & Construction Pty Ltd is a case before the court involving disputes in building and construction, consumer law, and contract law. The plaintiffs, Elias, engaged the defendants, Alloha Formwork & Construction Pty Ltd, to construct a home. The plaintiffs claim that the defendants breached statutory warranties, engaged in misleading or deceptive conduct, breached the contract, and were negligent in issuing construction certificates. The defendants deny these claims. The legal issues before the court included whether the defendants breached statutory warranties, engaged in misleading or deceptive conduct, breached the contract, and were negligent in issuing construction certificates. The court also considered the appropriate measure of damages, including whether the plaintiffs were entitled to the cost of rectifying defects or the cost of demolition and rebuild, and whether the plaintiffs' impecuniosity should be considered in determining the loss.

The court found that the defendants breached statutory warranties by failing to construct the home to the required standard. The court held that the plaintiffs were entitled to the cost of rectifying the defects rather than the cost of demolition and rebuild. The court found that the defendants engaged in misleading or deceptive conduct by making representations to the plaintiffs about the quality of the work. The court also held that the plaintiffs were entitled to damages for the breach of contract and for the negligence of the third defendant in issuing construction certificates. The court held that the plaintiffs' impecuniosity did not need to be taken into account in determining the loss. The court found that the first defendant repudiated the contract, but the plaintiffs did not accept the repudiation.

The court ordered the defendants to pay the plaintiffs the cost of rectifying the defects in the home, damages for the misleading or deceptive conduct, damages for the breach of contract, and damages for the negligence of the third defendant. The court also ordered the defendants to pay interest and costs. The court did not award any damages for the plaintiffs' impecuniosity. The court held that the plaintiffs were entitled to recover the full amount of the damages awarded, without any reduction for their impecuniosity.

Orders