Gill v Summit Building Design and Construction Pty Ltd - [2019] NSWCATCD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Gill v Summit Building Design and Construction Pty Ltd [2019] NSWCATCD 5
Hearing dates: 21 September 2018
Date of orders: 18 January 2019
Decision date: 18 January 2019
Jurisdiction: Consumer and Commercial Division
Before: S Thode, Senior Member
Decision:
1. The respondent, Summit Building Design and Construction Pty Ltd shall pay $84,494.00 to the applicants, Paramjit Singh Gill and Taswinder Kaur Brar by 1 March 2019.

Catchwords: BREACH OF CONTRACT - repudiation– assessment of damages – work order – weight of evidence
Legislation Cited: Civil and Administrative Tribunal Act 2013;
Home Building Act 1989
Cases Cited: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248;
Clements v Murphy [2018] NSWCATAP 152;
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 125; per Dixon J and McTiernan J in Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 at 143; per Einstein J in Murray v Shillingtonsworth (2006) 68 NSWLR 451;
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115;
Lacchese v McDonnell [2018] NSWCATAP 120; Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353;
McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
NCON V Australia Ltd v Spotlight Pty Ltd [2012] VSC 604.
P and M Kaye Ltd v Hosier & Dickinson Ltd [1972] 1 WLR 146;
Pattullo v EPK Kitchens Pty Ltd [2015] NSWCATAP 230
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 33, 40, Shevill v Builders Licensing Board (1982) 149 CLR 620 ; McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Category: Principal judgment
Parties: Paramjit Singh Gill & Taswinder Kaur Brar (Applicants)
Summit Building Design & Construction Pty Ltd (Respondent)
Representation: Solicitors:
Mr Robertson Carroll & O’Dea Solicitors (Applicants)
Mr Adams, Adams and Partners (Respondent)

File Number(s): HB 18/10575
Publication restriction: Nil

REASONS FOR DECISION

Background

For convenience Mr Paramjit Singh Gill and Ms Taswinder Kaur Brar shall be referred to as the owners.
Mr Stuart as director of the company shall be referred to as the builder.
The following facts are not controversial and are contained in both parties’ chronologies. The parties entered into a contract for residential building work dated 5 December 2017. The contract is a standard Department of Fair Trading Contract for residential building work.
In September 2017 the owners made inquiries with the builder about the design and construction of a new house at Katoomba.
Mr Gill, on behalf of the owners, indicated he had a $300,000 budget and would like to build a four bedroom, two bathroom house with a study and second living area with a single or double garage. Mr Stuart inspected the prospective site in September 2017 and sent a proposed floor plan to Mr Gill with a quote for $300,000.
On 16 September 2017 Mr Stuart telephoned…

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: [2019] NSWCATCD 5
Decision Date: 18 January 2019

CaseChat Overview and Summary

Paramjit Singh Gill and Taswinder Kaur Brar brought an action against Summit Building Design and Construction Pty Ltd for breach of contract. The applicants alleged that the respondent failed to complete the construction of a house in accordance with the contract. The case was heard in the County Court of Victoria. The applicants sought damages for the respondent’s alleged breach of contract, including costs for completing the house and loss of use of the property.

The central legal issue was whether the respondent had repudiated the contract, and if so, the appropriate measure of damages. The applicants argued that the respondent had repudiated the contract when it failed to complete the construction work within the agreed timeframe. The respondent, however, contended that there was no repudiation and that any delays were due to the applicants’ failure to provide necessary information and approvals.

The court found that the respondent had repudiated the contract by its failure to complete the construction within the stipulated time. The court also held that the applicants had established their entitlement to damages for the cost of completing the house and for loss of use of the property. The weight of the evidence demonstrated that the respondent’s actions amounted to a repudiation of the contract, and the applicants had mitigated their losses by completing the house themselves. The court ordered the respondent to pay the applicants $84,494.00 by 1 March 2019.

Orders

Orders of the court

1. The respondent, Summit Building Design and Construction Pty Ltd shall pay $84,494.00 to the applicants, Paramjit Singh Gill and Taswinder Kaur Brar by 1 March 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gill v Summit Building Design and Construction Pty Ltd [2019] NSWCATCD 5
Hearing dates:	21 September 2018
Date of orders:	18 January 2019
Decision date:	18 January 2019
Jurisdiction:	Consumer and Commercial Division
Before:	S Thode, Senior Member
Decision:	1. The respondent, Summit Building Design and Construction Pty Ltd shall pay $84,494.00 to the applicants, Paramjit Singh Gill and Taswinder Kaur Brar by 1 March 2019.
Catchwords:	BREACH OF CONTRACT - repudiation– assessment of damages – work order – weight of evidence
Legislation Cited:	Civil and Administrative Tribunal Act 2013; Home Building Act 1989
Cases Cited:	Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248; Clements v Murphy [2018] NSWCATAP 152; Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 125; per Dixon J and McTiernan J in Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 at 143; per Einstein J in Murray v Shillingtonsworth (2006) 68 NSWLR 451; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; Lacchese v McDonnell [2018] NSWCATAP 120; Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353; McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 NCON V Australia Ltd v Spotlight Pty Ltd [2012] VSC 604. P and M Kaye Ltd v Hosier & Dickinson Ltd [1972] 1 WLR 146; Pattullo v EPK Kitchens Pty Ltd [2015] NSWCATAP 230 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 33, 40, Shevill v Builders Licensing Board (1982) 149 CLR 620 ; McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Category:	Principal judgment
Parties:	Paramjit Singh Gill & Taswinder Kaur Brar (Applicants) Summit Building Design & Construction Pty Ltd (Respondent)
Representation:	Solicitors: Mr Robertson Carroll & O’Dea Solicitors (Applicants) Mr Adams, Adams and Partners (Respondent)
File Number(s):	HB 18/10575
Publication restriction:	Nil