CITATION: Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
HEARING DATE(S): 27 September 2004; 28 September 2004
JUDGMENT DATE:
7 September 2005JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; McColl JA at 3
DECISION: Statement of Claim; (1) Appeal allowed.; (2) Set aside the verdict for the respondent on the claim and all orders (including costs orders) made on the claim by Murrell DCJ on 18 June 2003.; (3) Verdict for the appellant on the claim.; (4) Remit the matter to Murrell DCJ to quantify the loss or damage suffered by the appellant and determine all questions of costs of the claim.; ; Amended Cross-Claim; (5) Set aside the verdict, judgment and orders made against the appellant on the cross-claim by Murrell DCJ on 18 June 2003.; (6) Verdict for the appellant on the cross-claim.; (7) Order the respondent to pay the appellant's costs of and incidental to the cross-claim.; Costs of Appeal; (8) Respondent to pay the appellant's costs of and incidental to the appeal.
CATCHWORDS: BUILDING & ENGINEERING CONTRACTS - Notice of Default - whether Notice technically valid - construction - whether warranty to perform building works with due diligence and within the time stipulated in the contract imposed conjoint obligation - due diligence - breach of contract - onus of proof - works not completed by date set for practical completion - evidence of failure to perform building work with due diligence - explanation of period works took. (D)
LEGISLATION CITED: Conveyancing Act 1881 (Imp)
Fair Trading Act 1987
Home Building Act 1989
Trade Practice Act 1974CASES CITED: Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317
Brady v Group Lotus Car Cos plc [1987] 3 All ER 1050
Brenmar Building Co Pty Ltd v University of Newcastle (1999) 15 BCL 467
Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165
Fletcher v Nokes [1897] 1 Ch 271
Pauling v Mayor, Alderman & Burgesses of Borough of Dover (1855) 10 Exch 753; (1855) 156 ER 644
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Greater London Council v Cleveland Bridge & Engineering Co Ltd (1986) 34 BLR 50
Hart v MacDonald [1910] HCA 13; (1910) 10 CLR 417
Hick v Raymond & Reid [1893] AC 22
Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220
Hooker Constructions Pty Ltd v Chris's Engineering Contracting Co [1970] ALR 821
Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Maynard v Goode [1926] HCA 4; (1926) 37 CLR 529
Minister for Public Works v Renard Constructions (ME) Pty Ltd (Supreme Court of New South Wales, unreported, 15 February 1989, BC8902548)
Re Stewardson Stubbs & Collett Pty Ltd & Bankstown Municipal Council [1965] NSWR 1671
State of New South Wales v Austeel Pty Ltd [2003] NSWCA 392
Watson v George…
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- AGLC
- Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
- Case
- [2005] NSWCA 303
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, it had to consider whether a warranty to perform building works with due diligence and within the time stipulated in the contract imposed a conjoint obligation. Secondly, the court needed to assess whether the respondent had discharged the onus of proof regarding the appellant's alleged failure to perform the works with due diligence, particularly in light of the works not being completed by the date set for practical completion. Finally, the court had to determine the validity of the notice of default issued by the respondent.
The Court of Appeal found that the warranty to perform building works with due diligence and within the stipulated time did not impose a conjoint obligation. The court reasoned that the failure to complete the works by the practical completion date, without more, did not necessarily establish a breach of the due diligence warranty. Evidence regarding the explanation for the period the works took was crucial in this assessment. The court also considered the technical validity of the notice of default.
The appeal was allowed, and the verdict for the respondent on the claim, along with all associated orders, was set aside. A verdict was entered for the appellant on the claim, and the matter was remitted to the primary judge to quantify the appellant's loss or damage and determine all questions of costs of the claim. The verdict, judgment, and orders made against the appellant on the cross-claim were also set aside, with a verdict entered for the appellant on the cross-claim and the respondent ordered to pay the appellant's costs of and incidental to the cross-claim. The respondent was also ordered to pay the appellant's costs of and incidental to the appeal.
Orders
Orders of the court
Statement of Claim; (1) Appeal allowed.; (2) Set aside the verdict for the respondent on the claim and all orders (including costs orders) made on the claim by Murrell DCJ on 18 June 2003.; (3) Verdict for the appellant on the claim.; (4) Remit the matter to Murrell DCJ to quantify the loss or damage suffered by the appellant and determine all questions of costs of the claim.; ; Amended Cross-Claim; (5) Set aside the verdict, judgment and orders made against the appellant on the cross-claim by Murrell DCJ on 18 June 2003.; (6) Verdict for the appellant on the cross-claim.; (7) Order the respondent to pay the appellant's costs of and incidental to the cross-claim.; Costs of Appeal; (8) Respondent to pay the appellant's costs of and incidental to the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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