Elrob Construction Group Pty Ltd v Haddad

[2025] NSWDC 380

District Court

New South Wales

Medium Neutral Citation:

Elrob Construction Group Pty Ltd v Haddad [2025] NSWDC 380

Hearing dates:

11 – 14 November 2024, 28 February 2025

Date of orders:

24 September 2025

Decision date:

24 September 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1) Judgment for the defendant on the plaintiff’s claim. The plaintiff’s claim is dismissed.

(2) Judgment for the defendant on the first cross-claim.

(3) The plaintiff is to pay the defendant the total sum of $226,446.39 for breach of the contracts.

(4) The plaintiff is to pay the defendant the total sum of $25,000 by way of liquidated damages under the contracts.

(5) The plaintiff is to pay the defendant the sum of $95,134.52 by way of restitution.

Catchwords:

BUILDING AND CONSTRUCTION — Contract — Damages – claim by builder for cost of variations – alternative claim in quantum meruit

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — cross-claim by owner for damages for alleged defects and incomplete works – claim for restitution of money paid under the Building and Construction Industry Security of Payment Act 1999 (NSW)

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999

Home Building Act 1989

Cases Cited:

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

John Holland Pty Ltd v Roads and Traffic Authority of NSW (‘John Holland’) [2007] NSWCA 140

Lumbers v W Cook Builders Pty Ltd (In Liq) (2008) 232 CLR 635

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

Category:

Principal judgment

Parties:

Elrob Construction Group Pty Ltd (Plaintiff/Cross-Defendant)
Sami Haddad (Defendant/Cross-Claimant)

Representation:

Counsel:
G Campbell (Defendant/Cross-Claimant)

Solicitors:
Madison Marcus (Defendant/Cross-Claimant)

File Number(s):

2021/00277709

Publication restriction:

Nil

JUDGMENT

1. In 2017, the plaintiff, Elrob Construction Group Pty Ltd (“Elrob”), entered into two contracts with the defendant, Mr Sami Haddad, to build two double storey brick houses (“55” and “55A”, collectively, “the houses”) on a parcel of land owned by Mr Haddad in San Souci, New South Wales (“the land”). The land was to be subdivided so that each house would have its own allotment.

2. Building work was undertaken, and, in the course of the building work, numerous variations were made to the contracts.

3. In August 2020, Mr Haddad made a complaint to NSW Fair Trading about allegedly defective and incomplete work in the houses.

4. On 18 September 2020, the building certifier issued a list of works to be completed as a pre-condition to the issuing of an occupation certificate to Mr Haddad.

5. On 12 November 2020, Elrob issued payment claims 1111a and 1111b to Mr Haddad, claiming payment, for the first time, for three variations in relation to each house (six variations in total). Claim 1111a related to 55A and claim 1111b related to 55.

6. On 13 November 2020, Elrob filed proceedings in the Civil and Administrative Tribunal of New South Wales (NCAT), seeking an order for payments from Mr Haddad allegedly due under the contract with respect to 55A (“the contract”).

7. On 5 December 2020, Elrob made an…