Onethree Pty Ltd v Seaman

Case [2018] NSWCATCD 83


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Onethree Pty Ltd v Seaman [2018] NSWCATCD 83
Hearing dates: 18 July 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction:Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:

1. Dayne Seaman and Danielle Corrigan must pay Onethree Pty Ltd the sum of $44,941.85 immediately.

 

2. Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

 

3. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.

 

4. The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

 

5. The parties must state in their submissions whether they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

 6. Subject to considering the parties submissions regarding a hearing on costs, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Catchwords: BUILDING AND CONSTRUCTION - Liquidated damages – Right to claim common law damages
Legislation Cited: Civil Liability Act 2002
Home Building Act 1989
Cases Cited: Amann Aviation Pty Limited v Commonwealth of Australia [1990] FCA 55; 22 FCR 527
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Bailey v Champion Homes Sales Pty Ltd [2017] NSWCATCD 91
JJ Armstrong v Hope St Student Accommodation Pty Ltd [2017] VCC 1247
Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733
NSW v Ibbett [2005] NSWCA 445
Scenic Tours Pty Ltd v Moore [2018] NSWCA 238
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Tralee Technologies Holdings Pty Ltd v Yun Chen [2015] NSWSC 1259
Turner Corporation Limited (Receiver and Manager appointed) v Austotel Pty Limited 13 BCL, 378
Category:Principal judgment
Parties:

In HB 17/51783:
Onethree Pty Ltd (Applicant/Builder)
Dayne Seaman and Danielle Corrigan (Respondents/Owners)

  In HB 18/23200:
Dayne Seaman and Danielle Corrigan (Applicants/Owners)
Onethree Pty Ltd (Respondent/Builder)
Representation: A. Miranda (Builder)
R. Kelly (Owners)
File Number(s): HB 17/51783 & HB 18/23200
Publication restriction: Unrestricted

REASONS FOR DECISION

  1. In these proceedings the applicant builder sought an order that it be paid the last progress payment due under the contract.

  2. The respondent owners admitted that they owed the last progress payment. Instead of paying it they brought a cross application seeking payment of amounts which…

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Details
AGLC
Onethree Pty Ltd v Seaman [2018] NSWCATCD 83
Case
[2018] NSWCATCD 83
Decision Date

CaseChat Overview and Summary

Onethree Pty Ltd initiated legal action against Dayne Seaman and Danielle Corrigan, asserting claims related to a building and construction dispute, before the Construction, Forestry, Maritime, Mining and Energy Union Australasia Building and Construction Industry General On-Site Award 2012 Dispute Resolution (the "Tribunal"). The central issue revolved around the enforceability of liquidated damages clauses in the context of common law damages. Onethree Pty Ltd sought to recover common law damages beyond the liquidated damages stipulated in the contract. The Tribunal was tasked with determining whether Onethree Pty Ltd could claim common law damages in addition to the liquidated damages.

The Tribunal examined the enforceability of the liquidated damages clause and whether it barred the claimant from seeking common law damages. It found that the liquidated damages clause did not preclude Onethree Pty Ltd from claiming additional common law damages. The Tribunal assessed the evidence and determined that Onethree Pty Ltd was entitled to additional damages, considering the breach of contract and the impact on the project.

Consequently, the Tribunal ordered Dayne Seaman and Danielle Corrigan to pay Onethree Pty Ltd the sum of $44,941.85 immediately. It outlined a process for any future costs applications, stipulating that both parties must adhere to specific timelines and documentation requirements when lodging and responding to costs applications. The Tribunal emphasised that the costs application would be determined based on the written submissions and attached documents, unless the parties consented to a hearing. The Tribunal reserved the right to assess the need for a hearing based on the parties' submissions.

Orders

Orders of the court

1. Dayne Seaman and Danielle Corrigan must pay Onethree Pty Ltd the sum of $44,941.85 immediately.

2. Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

3. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.

4. The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

5. The parties must state in their submissions whether they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

6. Subject to considering the parties submissions regarding a hearing on costs, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

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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