JONES and AFRA CONSTRUCTIONS PTY LTD - [2014] WASAT 54

JONES and AFRA CONSTRUCTIONS PTY LTD [2014] WASAT 54

Last Update: 12/05/2014

JONES and AFRA CONSTRUCTIONS PTY LTD [2014] WASAT 54
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 54
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:1124/2013	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS N OWEN-CONWAY (MEMBER)	Delivered:	07/05/2014
No of Pages:	16	Judgment Part:	1 of 1
Result:	Nominal damages awarded to applicant
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	KEITH NORMAN JONES AFRA CONSTRUCTIONS PTY LTD
Catchwords:	Claim for delay in completion of construction of dwelling Breach of contract Loss and damage Turns on own facts
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 41(2)(d)(i), s 43(1)(b), s 36 Corporations Act 2001 (Cth), s 440D Home Building Contracts Act 1991 (WA), s 3, s 7(a)(1) State Administrative Tribunal Act 2004 (WA), s 39(1)(e), s 60(2)
Case References:	Biggin and Co Ltd v Permanite Ltd (1951) 1 KB 422 Chaplin v Hicks (1911) 2 KB 786 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64 Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 Jones v Schiffmann [1971] HCA 52; (1971) 124 CLR 303 McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377 Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850 Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Orders:	The Tribunal makes the following order: 1. The respondent shall pay to the applicant the sum of $100, being nominal damages pursuant to s 41(2)(d)(i) and s 44(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), for the respondent's breach of the contract between the applicant and the respondent dated 19 November 2010. 2. The Tribunal otherwise dismisses the application, the applicant's alleged loss and damage not being proved and an order not being justified as provided for by s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
Summary:	The Tribunal found that the respondent breached the terms of the contract between the parties to construct a dwelling. The Tribunal found that the respondent was 108 weeks and five days delayed on the completion of the dwelling beyond the period for practical completion provided for in the contract between the parties. The Tribunal however found that the applicant's alleged loss and damage was not proved by his evidence, despite an adjournment of the final hearing to assist the applicant to file relevant and cogent evidence in support of the rental value of the applicant's property, including the dwelling (had it been completed) in the relevant period. Nominal damages were awarded.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : JONES and AFRA CONSTRUCTIONS PTY LTD [2014] WASAT 54 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS

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

AGLC: JONES and AFRA CONSTRUCTIONS PTY LTD [2014] WASAT 54
Case: [2014] WASAT 54
Decision Date: 7 MAY 2014

CaseChat Overview and Summary

In the Supreme Court of Victoria, Jones, a homeowner, pursued a claim against Afra Constructions Pty Ltd, the builder, over delays in the completion of a residential property. The dispute centred on whether Afra Constructions had breached its contractual obligations by failing to complete the construction within the stipulated timeframe, resulting in financial loss and inconvenience to Jones. The court was tasked with determining whether Afra Constructions was liable for the delay and, if so, whether Jones was entitled to compensation for the resulting damages.

The central legal issues revolved around the interpretation of the contract between the parties, specifically the completion date clauses and any provisions related to extensions of time. The court had to ascertain whether the delays were attributable to Afra Constructions or if they were due to factors beyond their control. Additionally, the court needed to evaluate the extent of the damages claimed by Jones, including any reliance damages and whether the delay caused additional costs to the homeowner.

The court found that Afra Constructions had indeed delayed the completion of the property beyond the contractual deadline, and that these delays were within their control. However, the court determined that Jones had not suffered any ascertainable financial loss as a result of the delay, as he had not incurred additional costs directly attributable to the delay. Consequently, the court awarded Jones nominal damages of one dollar, recognising the breach of contract without awarding further compensation due to the lack of proven financial loss.

Orders

Orders of the court

Nominal damages awarded to applicant

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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