Love v CTTT & Anor - [2007] NSWSC 596

CITATION: Love v CTTT & Anor [2007] NSWSC 596

HEARING DATE(S): 08/06/2007

JUDGMENT DATE :
14 June 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: The appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS: Dispute between builder and owner - contractual changes - residential building work - ambit of appeal - lack of supporting evidence - extension of time

LEGISLATION CITED: Consumer, Trader & Tenancy Tribunal Act 2001 (NSW)
Home Building Act 1989 (NSW)

CASES CITED: Collings Homes v Head & Ors [2002] NSWSC 1219
Fiatorque Five Dock Pty Limited v Daines & Anor [2007] NSWSC 520

PARTIES: Robert Ian Love
Consumer, Trader and Tenency Tribunal
Patrick William Joseph Kelly, Anthony Francis Gallagher & Alison Jane Kelly trading as HOBC Constructions

FILE NUMBER(S): SC 30158/06

COUNSEL: Mr G. Miller QC (Pl)
Mr N. J. Owens (2nd Def)

SOLICITORS: Clinch Neville Long (Pl)
Crown Solicitor (1st Def) (submitting appearance)
Glasheen & Quilty (2nd Def)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 05/40677; 05/40707

LOWER COURT JUDICIAL OFFICER : J Deamer

LOWER COURT DATE OF DECISION: 15/08/2006

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

14 JUNE 2007

30158/06 Robert Ian Love v Consumer, Trader & Tenancy Tribunal & Anor

1 HIS HONOUR: The Plaintiff is the owner of a property in Corunna Road, Stanmore. In or about August 2003, the second defendant was engaged to perform residential building work in respect of it. It seems that a written contract was executed by the parties.

2 The second defendant performed building work until in or about December 2003. The plaintiff was then having problems in paying invoices. A consensus emerged between the parties, which saw a change in the relationship between them. The second defendant ceased the performance of building work. His involvement thereafter was to provide names of sub-contractors who would then be engaged by the plaintiff. Invoices would be rendered by sub-contractors to the second defendant and the second defendant would then render an invoice to the plaintiff. The invoice from the second defendant added a “15% margin”.

3 After December 2003, the second defendant rendered one invoice. It was in part a claim for what had been done prior to December 2003 and in part a claim for what had been done thereafter. It was not paid by the plaintiff.

4 The second defendant brought proceedings in the Consumer, Trader and Tenancy Tribunal (the Tribunal). The second defendant claimed the sum of $44,838.68 plus interest. The plaintiff also brought proceedings, claiming damages for defective work (it came to be a claim in excess of $150,000).

5 The proceedings were heard by Tribunal Member Deamer. She delivered her reasons for decision (the reasons) on 15 August 2006. She found for the second defendant on it’s application. She rejected the application brought by the plaintiff.

6 The plaintiff had received legal advice. He did not…

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 Love v CTTT & Anor

Details

AGLC: Love v CTTT [2007] NSWSC 596
Case: [2007] NSWSC 596
Decision Date: 14 June 2007

CaseChat Overview and Summary

In Love v CTTT & Anor, the parties involved were Love, the owner of a residential property, and CTTT, the builder contracted to undertake work on the property. The dispute arose from changes in the scope of work and the builder's failure to complete the work within the agreed timeframe. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the builder was entitled to additional compensation for changes in the scope of work and whether the owner was required to extend the time for completion of the work.

The court considered the legal principles governing contractual changes and the implications for both parties. The builder argued that the owner's instructions constituted a variation to the original contract, entitling the builder to additional payment. The owner contended that the builder had failed to provide adequate evidence to support the claim for additional payment and that the builder's request for an extension of time was unreasonable. The court found that the builder's claims were not supported by sufficient evidence, and the owner was not required to extend the time for completion of the work. The court held that the builder was not entitled to additional compensation for the changes in scope, and the owner's obligations under the contract were not altered.

The court's decision was based on the evidence presented and the terms of the original contract. The builder's claims for additional compensation and an extension of time were dismissed, and the court found in favour of the owner. The court's reasoning emphasised the importance of clear contractual terms and the need for builders to provide adequate evidence to support claims for additional payment. The court also highlighted the owner's right to hold the builder to the original terms of the contract unless there is a valid variation agreed upon by both parties. The final orders of the court were that the builder's claims for additional payment and an extension of time were dismissed, and the owner was not required to pay any additional compensation or extend the time for completion of the work.

Orders