NuStone v McInerney

Case [2022] NSWCATCD 23

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: NuStone v McInerney [2022] NSWCATCD 23
Hearing dates: 24 and 25 August 2021
Submissions close 25 November 2021
Date of orders: 19 January 2022
Decision date: 19 January 2022
Jurisdiction:Consumer and Commercial Division
Before: S Thode, Senior Member
Decision:

1. In HB 20/36393 Nu-Stone Building Pty Ltd is to pay $114,557.17 to Garry and Gladys McInerney immediately.

2. HB 20/15757 is otherwise dismissed.

3. I order the builder to pay the owners’ costs of the applications on the ordinary basis as agreed or assessed.

4. In the event either party applies for different costs orders, the order for costs made in order (3) above ceases to have effect.

5. For any different application for costs, the following directions apply to that application:

(a)   The applicant for costs (costs applicant) is to file and serve any evidence and submissions on costs within 14 days of the date of publication of these orders;

(b)   The respondent to the costs application (costs respondent) is to file and serve any evidence and submissions in reply within 14 days of the date of publication of these orders.

(c)   The costs applicant is to file and serve any submissions in reply within 21 days from the date of publication of these orders;

(d) The submissions of the parties are to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

(e)   In the event that both parties apply for a different costs order, an indexed and paginated bundle of all costs submissions is to be provided to the Tribunal at the end of the submission period.

Catchwords:

BUILDING AND CONSTRUCTION —Home Building – Defects claim – Repudiation – Termination – Damages for breach of contract – term of good faith implied into the contract

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 282-3; 16 ALR 363

Burger King Corp v Hungry Jacks Pty Ltd [2001] NSWCA 187

Insight Oceania v Philips Electronics [2008] NSWSC 710

Nayack v Rockwell Constructions Pty Limited [2017] NSWCATAP 18

Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234

Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2000] NSWSC 187

Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75

Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382

United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177

Texts Cited:

Nil

Category:Principal judgment
Parties:

HB 20/15757:
Nu-Stone Building Pty Ltd (Applicant)
Garry and Gladys McInerney (Respondents)

HB 20/36393:
Garry and Gladys McInerney (Applicants)
Nu-Stone Building Pty Ltd (Respondent)
Representation:

Counsel:
M Klooster (Nu Stone Building Pty Ltd)

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Details
AGLC
NuStone v McInerney [2022] NSWCATCD 23
Case
[2022] NSWCATCD 23
Decision Date

CaseChat Overview and Summary

NuStone Building Pty Ltd, trading as NuStone, filed a case against Garry and Gladys McInerney in the Civil and Administrative Tribunal. The dispute arose from a contract for the construction of a residential home. The McInerneys alleged that the house built by NuStone had significant defects, and they sought damages for breach of contract and for NuStone's repudiation of the contract. The Tribunal was tasked with determining whether NuStone was liable for the defects and the appropriate quantum of damages, as well as whether the contract included an implied term of good faith.

The key legal issues before the Tribunal included whether NuStone breached the contract by delivering a home with substantial defects, and if so, what amount of damages should be awarded. Another issue was whether NuStone had repudiated the contract, entitling the McInerneys to terminate the agreement and claim damages. Additionally, the Tribunal needed to assess whether there was an implied term of good faith in the contract and if that term had been breached by NuStone.

The Tribunal found that NuStone had indeed breached the contract by delivering a home with defects, and the McInerneys were entitled to damages. The Tribunal calculated the damages owed to the McInerneys and concluded that NuStone was liable for $114,557.17. The Tribunal did not find that NuStone had repudiated the contract, and therefore, the McInerneys were not entitled to terminate the contract. Regarding the implied term of good faith, the Tribunal found that such a term could be implied into the contract and that NuStone had breached this term, but this did not affect the final outcome of the damages claim.

The Tribunal ordered NuStone to pay $114,557.17 to the McInerneys immediately and dismissed the other claims. The Tribunal also provided directions for any future applications for costs between the parties. The Tribunal ordered NuStone to pay the McInerneys’ costs of the applications on the ordinary basis unless either party applied for different costs orders, in which case specific procedural directions were provided.

Orders

Orders of the court

1. In HB 20/36393 Nu-Stone Building Pty Ltd is to pay $114,557.17 to Garry and Gladys McInerney immediately.

2. HB 20/15757 is otherwise dismissed.

3. I order the builder to pay the owners’ costs of the applications on the ordinary basis as agreed or assessed.

4. In the event either party applies for different costs orders, the order for costs made in order (3) above ceases to have effect.

5. For any different application for costs, the following directions apply to that application:

(a) The applicant for costs (costs applicant) is to file and serve any evidence and submissions on costs within 14 days of the date of publication of these orders;

(b) The respondent to the costs application (costs respondent) is to file and serve any evidence and submissions in reply within 14 days of the date of publication of these orders.

(c) The costs applicant is to file and serve any submissions in reply within 21 days from the date of publication of these orders;

(d) The submissions of the parties are to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

(e) In the event that both parties apply for a different costs order, an indexed and paginated bundle of all costs submissions is to be provided to the Tribunal at the end of the submission period.

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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