H Build Pty Ltd v Nixon - [2018] NSWCATCD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: H Build Pty Ltd v Nixon [2018] NSWCATCD 20
Hearing dates: 13 December 2017
Date of orders: 07 May 2018
Decision date: 07 May 2018
Jurisdiction: Consumer and Commercial Division
Before: Ian Bailey AM SC
Decision:
(1)   In HB 17/08049 the homeowner is to pay to the builder $199,639.36 immediately.

(2)   HB 17/19441 is dismissed.

(3)   Any Application concerning costs in proceedings HB 17/08049 and HB 17/19441 is to file in the Tribunal along with evidence in support of the Application and Submissions on or before 28 May 2018

(4)   Any Response to the Application is to be filed in the Tribunal along with evidence in support and Submissions on or before 18 June 2018
(5)   The Submissions are to address whether the Application should be determined on the papers.
Catchwords: Home Building; Cost-Plus contract; variations, implied terms; repudiation; termination under the contract and at common law
Legislation Cited: Home Building Act 1989
Cases Cited: Shevill v Builder’s Licensing Board (1982) 149 CLR 620
Impact Funds management Pty Ltd v Roy Morgan Research Ltd [2016] VSC 221
Reveille Independent Llc v Anotech International (UK) Ltd [2016] EWCA Civ 443.
Texts Cited: Dorter & Sharkey, Building and Construction Contracts in Australia, paragraph [12.30]
Category: Principal judgment
Parties: HBuild Pty Ltd - Applicant / Cross Respondent
Megan Nixon – Respondent / Cross Applicant
Representation:
Counsel:
B Le Plastrier for Applicant / Cross Respondent

M Galvin for Respondents / Cross Applicants

Solicitors:
Fielding Robinson for Applicant / Cross Respondent
Dentons for Respondent / Cross Applicants

File Number(s): HB 17/08049 and HB 17/19441
Publication restriction: Unrestricted

reasons for decision

These proceedings concern claims by a builder and a homeowner arising from a contract for residential building work comprising alterations and additions to an existing single storey semi-detached dwelling in North Sydney.
In both proceedings the homeowner, at various times and in numerous documents, has been referred to as both Megan Nixon and her husband Bruce Nixon. The homeowner party to the contract was Megan Nixon as the registered owner of the property. Tribunal sought confirmation from the parties as to the status of Bruce Nixon in the proceedings and received a response from the builder, but not from the homeowner. The Tribunal concludes that whilst Bruce Nixon participated in the relevant events which occurred, this was not in the capacity as a party to the contract or as the homeowner. The Tribunal accepts that as the husband of the homeowner he was able to give instructions on her behalf. For the sake of consistency references taken from documents which refer to “the homeowners” should be understood as only referring to Megan Nixon.
In HB 17/08049, the Applicant builder, HBuild Pty Ltd, (builder) claims an amount of $155,471.01 for unpaid progress claims for work performed under the Cost-Plus contract. The application was filed on 19 February 2017.
The homeowner, apart from defending the builder’s application, on 23 April 2017 filed a cross application, HB 17/19441,…

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: [2018] NSWCATCD 20
Decision Date: 07 May 2018

CaseChat Overview and Summary

The matter before the court involved H Build Pty Ltd, a home builder, and Nixon, the homeowner, who were engaged under a cost-plus contract for the construction of a house. The dispute centred around variations to the contract, the applicability of implied terms, and issues of repudiation and termination of the contract, both under the contract itself and at common law. The case was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issues the court had to decide included whether the builder had breached the contract by failing to complete the work in a timely and workmanlike manner, whether the homeowner had validly repudiated the contract, and whether the builder was entitled to terminate the contract and claim the outstanding amount owed. Additionally, the court needed to consider whether the builder's conduct amounted to a repudiation of the contract that would allow the homeowner to terminate the agreement at common law.

The court found that the builder had breached the contract by failing to complete the work in a timely and workmanlike manner, thereby justifying the homeowner's decision to terminate the contract. However, the court also determined that the builder was not entitled to terminate the contract and claim the outstanding amount owed, as the homeowner had not repudiated the contract. The court held that the homeowner's actions did not amount to a repudiation of the contract, as they were seeking to enforce the builder's contractual obligations rather than refusing to perform the contract. Consequently, the court ordered the homeowner to pay the builder the outstanding amount owed, dismissing the builder's claim for termination and repudiation.

The court issued orders directing the homeowner to pay the builder $199,639.36 immediately, dismissing the builder's claim for termination and repudiation. It further instructed that any applications concerning costs in the proceedings should be filed in the Tribunal with supporting evidence and submissions by specified dates. Additionally, the court mandated that any responses to these applications should also be filed with supporting evidence and submissions by a later date, and that the submissions should address whether the application should be determined on the papers.

Orders

Orders of the court

(1) In HB 17/08049 the homeowner is to pay to the builder $199,639.36 immediately.

(2) HB 17/19441 is dismissed.

(3) Any Application concerning costs in proceedings HB 17/08049 and HB 17/19441 is to file in the Tribunal along with evidence in support of the Application and Submissions on or before 28 May 2018

(4) Any Response to the Application is to be filed in the Tribunal along with evidence in support and Submissions on or before 18 June 2018

(5) The Submissions are to address whether the Application should be determined on the papers.

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:	H Build Pty Ltd v Nixon [2018] NSWCATCD 20
Hearing dates:	13 December 2017
Date of orders:	07 May 2018
Decision date:	07 May 2018
Jurisdiction:	Consumer and Commercial Division
Before:	Ian Bailey AM SC
Decision:	(1) In HB 17/08049 the homeowner is to pay to the builder $199,639.36 immediately. (2) HB 17/19441 is dismissed. (3) Any Application concerning costs in proceedings HB 17/08049 and HB 17/19441 is to file in the Tribunal along with evidence in support of the Application and Submissions on or before 28 May 2018 (4) Any Response to the Application is to be filed in the Tribunal along with evidence in support and Submissions on or before 18 June 2018 (5) The Submissions are to address whether the Application should be determined on the papers.
Catchwords:	Home Building; Cost-Plus contract; variations, implied terms; repudiation; termination under the contract and at common law
Legislation Cited:	Home Building Act 1989
Cases Cited:	Shevill v Builder’s Licensing Board (1982) 149 CLR 620 Impact Funds management Pty Ltd v Roy Morgan Research Ltd [2016] VSC 221 Reveille Independent Llc v Anotech International (UK) Ltd [2016] EWCA Civ 443.
Texts Cited:	Dorter & Sharkey, Building and Construction Contracts in Australia, paragraph [12.30]
Category:	Principal judgment
Parties:	HBuild Pty Ltd - Applicant / Cross Respondent Megan Nixon – Respondent / Cross Applicant
Representation:	Counsel: B Le Plastrier for Applicant / Cross Respondent M Galvin for Respondents / Cross Applicants Solicitors: Fielding Robinson for Applicant / Cross Respondent Dentons for Respondent / Cross Applicants
File Number(s):	HB 17/08049 and HB 17/19441
Publication restriction:	Unrestricted