Kevest v Spiteri - [2002] NSWSC 22

CITATION: Kevest v Spiteri & Ors [2002] NSWSC 22

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 12393 of 2001

HEARING DATE(S): 29 January 2002

JUDGMENT DATE: 4 February 2002

PARTIES :

Kevest Pty Limited trading as Denmay Homes
(Plaintiff)
v
Edwin Spiteri (First Defendant)
Ann Spiteri (Second Defendant)
Fair Trading Tribunal of New South Wales (Third Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Fair Trading Tribunal of New South Wales

LOWER COURT
FILE NUMBER(S) : BU 2000/111

LOWER COURT
JUDICIAL OFFICER : Ian McDonell, Deputy Chairperson, David Baker, Member

COUNSEL : Mr T Lynch (Plaintiff)
E Olsson (First and Second Defendants)
N/A (Third Defendant)

SOLICITORS: Snelgrove & O'Brien (Plaintiff)
Gerard O'Donnell (First and Second Defendants)
I V Knight - Crown Solicitor - Submitting appearance (Third Defendant)

CATCHWORDS: Appeal from Tribunal - construction of clause 17 of Housing Industry Association "Plain English Building Agreement Edition 11" and consideration of the right of termination thereby conferred.

LEGISLATION CITED: N/A

CASES CITED: Brenmar Building Co Pty Ltd v The University of Newcastle (Court of Appeal - 12 December 1977).

DECISION: See Paragraph 38.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

MONDAY 4 FEBRUARY 2002

12393 of 2001 Kevest Pty Limited trading as Denmay Homes –v- Edwin Spiteri & Ors

JUDGMENT

1 Master Malpass: The plaintiff is a builder. The first and second defendants are the owners of the property known as Lot 408 Grosvenor Place West Pennant Hills. On 11 March 1998, these parties entered into a written agreement for the undertaking of residential building work (including the construction of a large two storey home). In the agreement, the plaintiff is referred to as the contractor.

2 The agreement is in the form of Edition 11 produced by the Housing Industry Association and available for use by its members. It is entitled “Plain English Building Agreement”. It contained inter alia clause 17. This clause is headed “Termination Of Contract By Owner” and is in the following terms:-

“The Owner may, subject to the following, end this Agreement if the Contractor:
(a) becomes bankrupt or executes a deed of Assignment or arrangement or makes any Composition for the benefit of creditors; or,
(b) goes into liquidation, either voluntary or compulsory, or has a Receiver or Official Manager appointed; or,
(c) fails to proceed with the Building Works with all due diligence; or,
(d) fails to proceed with the Building Works in a competent and workmanlike manner; or,
(e) without reasonable cause suspends the Building Work before Practical Completion; or,
(f) refuses or neglects to comply with any obligations under this Agreement; or,
(g) fails to remove or remedy any defective work (as directed by the warranty insurer) within the time allowed;

A. Specifying the default;

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.

Continue reading Kevest v Spiteri

Details

AGLC: Kevest v Spiteri [2002] NSWSC 22
Case: [2002] NSWSC 22
Decision Date: 4 February 2002

CaseChat Overview and Summary

In the case of Kevest v Spiteri, the matter came before the court on appeal from a decision made by a tribunal. The dispute between the parties centred on the interpretation of clause 17 in the Housing Industry Association's "Plain English Building Agreement Edition 11". Specifically, the issue was whether the clause granted a right of termination under the agreement. The parties were Kevest, the builder, and Mr Spiteri, the homeowner. The primary focus of the legal issues was to determine the precise meaning of the termination clause and whether it allowed the builder to terminate the agreement under certain circumstances.

The court was required to carefully examine the wording of clause 17 and consider the surrounding context in which it appeared. This involved not only a textual analysis but also an understanding of the practical implications of the clause. The court had to determine if the clause was ambiguous and, if so, whether that ambiguity could be resolved in favour of either party. The interpretation of such clauses is crucial as they often define the rights and obligations of the parties involved in a construction contract.

In reaching its decision, the court considered various aspects of the agreement, including the language used, the contractual context, and the intentions of the parties as evidenced by the document. The court concluded that the clause in question did not unambiguously confer a right of termination. It found that the language used was not clear enough to allow for such a significant consequence without further clarification. As a result, the court held that the builder did not have the right to terminate the agreement under the terms of clause 17. The tribunal's decision was subsequently affirmed, and the builder's appeal was dismissed.

Orders