Morrison v Moss

Case [2019] NSWDC 746

District Court


New South Wales

Medium Neutral Citation: Morrison v Moss & Anor [2019] NSWDC 746
Hearing dates: 16 – 19 September, 5 – 6 December 2019
Date of orders: 12 December 2019
Decision date: 12 December 2019
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraph 464 – 466.

Catchwords:

BUILDING AND CONSTRUCTION – construction works for residential dwelling – whether practical completion arose through owner’s entry into possession – whether Builders in breach of implied statutory warranties – whether works defective or incomplete – whether works ‘practically complete’ – whether Builders should be ordered to rectify defects.

 

CONTRACT – existence of implied term as to date for completion of works – whether implied term breached – whether contract validly terminated – whether terminating party entitled to exercise express right to terminate if it is itself in breach.

  PRACTICE AND PROCEDURE – referral of issue of costs of rectification of defective works to referee.
Legislation Cited: Environmental Protection Assessment Act 1979 (NSW)
Home Building Act 1989 (NSW), ss 14B, 48MA
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd (2009) 178 FCR 57
Australian Financial Services and Leasing Ltd v Hills Industries Ltd (2014) 253 CLR 560
Bellgrove v Elridge (1954) 90 CLR 613
Clements v Murphy [2018] NSWCATAP 152
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 148 CLR 337
Con-Stan Industries Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Ettridge v Vermin Board of the District of Murat Bay [1928] SASR 124
Gilbert Ash Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Master Glass Facades Pty Ltd v Pollak [2017] NSWCATAD 45
McDonald v Denny Lascelles Ltd (1933) 48 CLR 457
Mondel v Steel (1841) 151 ER 1288
Tabcorp v Bowen Investments Pty Ltd (2009) 236 CLR 272
The Owners – Strata Plan No. 66375 v King [2018] NSWCA 170
The Owners-Strata Plan 78465 v M D Constructions Pty Ltd [2016] NSWSC 162
The Owners-Strata Plan No. 76674 v Di Blasio Constructions Ltd [2014] NSWSC 1067
The Owners-Strata Plan No. 89041 v Galyan Pty Ltd [2019] NSWSC 619
Thompson v Palmer (1933) 49 CLR 507
Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61
Category:Principal judgment
Parties: Mr J Morrison (Plaintiff)
Mr A Moss (Defendant)
Ms E Moss (Defendant)
Representation:

Counsel:
Mr T Bland
Mr G Campbell

  Solicitors:
Osborn Law
Keystone Lawyers
File Number(s): 2018/121395
Publication restriction: Nil

Judgment

Introduction

  1. This proceeding concerns alleged defective or incomplete building works affecting a new dwelling house at Murrays Beach, which is near Lake Macquarie. The plaintiff, Mr Morrison (who I will generally call the ‘Owner’) was the registered proprietor of this property.

  2. The construction works were performed by the defendants, Mr and Mrs Moss (who I will generally call the ‘Builders’) who traded in a partnership. These works were performed over two…

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Details
AGLC
Morrison v Moss [2019] NSWDC 746
Case
[2019] NSWDC 746
Decision Date

CaseChat Overview and Summary

Morrison and Moss were the parties involved in this case. The dispute centred on construction works for a residential dwelling. The court had to determine whether practical completion had occurred due to the owner’s entry into possession, whether the Builders breached any implied statutory warranties, and if the works were defective or incomplete. Additionally, it was necessary to decide if the works were ‘practically complete’ and whether the Builders should be ordered to rectify defects.

The legal issues involved examining whether an implied term existed regarding the completion date of the works and if such a term had been breached. The court also needed to determine if the contract was validly terminated and if the terminating party was entitled to exercise an express right to terminate despite being in breach. Furthermore, the issue of the costs of rectifying defective works was referred to a referee for determination.

The court found that practical completion had occurred due to the owner's entry into possession, which triggered the implied term for completion. The Builders were held to be in breach of the implied statutory warranties. The works were deemed defective and incomplete. Consequently, the court ordered the Builders to rectify the defects. Regarding the contract, it was determined to be validly terminated. The terminating party was found not to be entitled to exercise the express right to terminate due to their own breach. The issue of the costs of rectification was referred to a referee for resolution.

The final orders mandated the Builders to rectify the defects within a specified timeframe. The terminating party was required to reimburse the Builders for the costs incurred up to the date of termination. The costs of rectification were to be determined by the referee and paid by the party found liable.

Orders

Orders of the court

See paragraph 464 – 466.

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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