Mohamed v Adrija Pty Ltd

[2017] ACTSC 158

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Mohamed & Anor v Adrija Pty Ltd

Citation:

[2017] ACTSC 158

Hearing Date:

8 May 2017

DecisionDate:

21 June 2017

Before:

Ashford AJ

Decision:

1.    The appeal be upheld.

2.    The judgment and orders of the Magistrates Court of 1 June 2016 be set aside.

3.    The matter be remitted to the Magistrates Court for rehearing and determination in respect of the breach notices and of the “fixings complete” issue.

4.    The Respondent pay the Appellants' costs of the appeal, unless there is any further submission.

5.    Her Honour recommends that the parties attempt mediation.

Catchwords:

APPEAL – CIVIL LAW – Appeal from the Magistrates Court – appeal against decision finding termination of contract lawful – appeal against damages arising from termination of contract – Magistrate erred in finding breach notice valid – substantive issues still requiring determination at first instance – matter in part remitted to the Magistrates Court

CONTRACT – BUILDING CONTRACT – Termination of contract – whether failure to make payment at certain stage of contract entitles termination of the contract – validity of breach notice – Magistrate erred in not making any determination as the validity of the subsequent breach notices

Cases Cited:

Cardona v Brown [2012] VSCA 174; 35 VR 538

Maples Winterview Pty Ltd v Liu & Anor [2015] ACTSC 58

Parties:

Abdiwahaab Barkhdale Mohamed (First Appellant)

Sagal Ahmed (Second Appellant)

Adrija Pty Ltd (ACN 119 998 720) (Respondent)

Representation:

Counsel

Mr N Philpott (First and Second Appellants)

Mr D Hand (Respondent)

Solicitors

Starnet Legal (First and Second Appellants)

Vertex Legal Group (Respondent)

File Number:

SCA 47 of 2016

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Magistrate Morrison

Date of Decision:         1 June 2016

Case Title:  Adrija Pty Ltd v Abdiwahaab Barkhadle Mohamed & Sagal Ahmed

Court File Number:       CS 504 of 2013

ASHFORD AJ:

Background to the appeal

1. By Notice of Appeal filed on 29 June 2016, the appellants appealed the decision of the ACT Magistrates Court made on 1 June 2016 and seek the decision be set aside and the proceedings remitted to the Magistrates Court for hearing and determination.

1. The three grounds of appeal as set out in the notice are:

(a)The learned Magistrate erred in finding that the respondent (‘the Builder’) was entitled to terminate the building contract with the appellants (‘the Owners’) on the basis that the Owners had failed to make payment on the “Fixings Complete” stage invoice.

Particulars:

(i)the building contract provided that the Builder was entitled to serve a progress payment for the “fixings complete” stage after the completion of the “fixings complete” stage as defined within the building contract;

(ii)the Builder served a progress payment claim upon the Owners in the sum of $54,750. The learned Magistrate found the works performed by the Builder under the building contract contained defects to the value of $25,130, being 46 per cent of the value of the “fixings complete” stage claim;

(iii)the Builder was therefore not…