In-Style Developments Pty Ltd v La

District Court

New South Wales

Medium Neutral Citation:

In-Style Developments Pty Ltd v La & Anor [2023] NSWDC 23

Hearing dates:

2 February 2022, 30 - 31 January, 1, 3 February 2023, 7 February (defendants’ supplementary written submissions), 8 February 2023 (plaintiff’s supplementary written submissions)

Date of orders:

13 February 2023

Decision date:

13 February 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 252 - 256

Catchwords:

BUILDING AND CONSTRUCTION – whether notice to rectify defective or incomplete works invalid – whether owners’ termination of contract unlawful – whether the conduct by the owners (or the architect on their behalf) prevented the builder from substantially complying with his obligations to complete – whether cap on compensation under contract excludes or modifies right to compensation for defective works supplied in breach of statutory warranties – whether costs for strip out or structural works necessary and reasonable

Legislation Cited:

Home Building Act 1989 (NSW) ss 18B, 18BA, 18G

Uniform Civil Procedure Rules 2005 (NSW) r 7.2

Cases Cited:

Benson Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69

Hadley & Anor v Baxendale & Ors (1854) 156 ER 145

Jones v Dunkel (1959) 101 CLR 298

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82

Turner v Co-ordinated Industries (1994) 11 BCL 202

Category:

Principal judgment

Parties:

In-Style Developments Pty Ltd (plaintiff/cross-defendant)
Xuan Dieu La (first defendant/cross-claimant)
Thi Minh Dang (second defendant/cross-claimant)

Representation:

Mr J Frangieh (in person) for the plaintiff/cross-defendant
Mr A Hourigan (Counsel) for the defendants/cross-claimants
Sarvaas Ciappara Lawyers (Solicitors) for the defendants/cross-claimants

File Number(s):

2020/229654

Publication restriction:

Nil

JUDGMENT

INTRODUCTION

1. The plaintiff is a construction company (the ‘builder’). The two defendants (the ‘owners’) are the owners of residential premises in Marrickville, which they purchased approximately in 1997. From about 2008, the owners engaged an architect (Tony Legge of Legge & Legge Architects) (hereafter the ‘architect’) to assist them to develop the premises. The premises comprised multiple townhouses each being three storeys with five bedrooms.

2. On 19 April 2016 the builder and the owners entered into a contract whereby the former agreed to supply construction services to the latter. The architect was appointed as the Building Contract Administrator. The contract price, which was adjustable, was $1,200,000 (incl GST). The date for practical completion (also adjustable) was 270 days from the commencement of the works.

3. Construction works were performed, but on 4 November 2019, the owners issued to the Builder a notice to rectify purported defects and complete works. On 18 December 2019, the owners purported (they say validly) to terminate the contract. The builder contends that the notice to rectify issued on 4 November 2019 was invalid. It followed, on the builder’s case, that any act by the owners terminating the contract on the basis of non-compliance with that notice, or any other complaint about delay in completion, was also invalid.

4. By its statement of claim (filed 6 August 2020), the builder generally brought claims in contract and restitution against…