Rathchime Pty Ltd v Willat; Willat v Rathchime - [2016] NSWCATCD 74

Civil and Administrative Tribunal

New South Wales

Case Name:	Rathchime Pty Ltd v Willat; Willat v Rathchime
Medium Neutral Citation:	[2016] NSWCATCD 74
Hearing Date(s):	18 November and 19 November 2016(Final submissions received 17 February 2016)
Decision Date:	9 September 2016
Jurisdiction:	Consumer and Commercial Division
Before:	T Simon, Senior Member
Decision:	1. The homeowners are to pay the builder the amount of $26,688.53 immediately. 2. The parties are to provide to the Tribunal and each other, either in person or by post, submissions and documents in relation to costs by 15 September 2016. 3. The parties are to provide to the Tribunal and each other, either in person or by post, submissions and documents in reply on costs by 30 September 2016. 4. Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 30 September 2016, setting out the reasons why and the Registry will advise in due course.
Catchwords:	Home Building, abandonment, repudiation, abandonment, variations, defects.
Legislation Cited:	Home Building Act 1989 (NSW)
Cases Cited:	Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248. Pavey & Matthews Pty Ltd v Paul [1987] HCA 5). Ryder and Anor v Frohlich and Anor [2004] NSWCA 472 Zeman v Bollard [2015] NSWCATCD 13
Category:	Principal judgment
Parties:	Parties in HB 14/43750 (homeowners application) Rathchime Pty Ltd (first applicant) Grant Willatt (respondent) Parties in HB 15/11593 (builder’s application) Grant Willatt (applicant) Rathchime Pty Ltd (respondent)
Representation:	Counsel: J Hyde − or the homeowners M Klooster − for the builder Solicitors: Mills Oakley Lawyers − for the homeowners Snelgroves Lawyers − for the builder
File Number(s):	HB 14/43750 & HB 15/11593
Publication Restriction:	Unrestricted

REASONS FOR THE DECISION

These reasons relate to two applications. Matter HB 14/43750 is an application made by the homeowner. Application HB 15/11593 was a subsequent application made by the builder.

The Applications

For ease of reference the parties shall be referred to as builder and homeowner.
The initial application was made by the homeowner on 2 September 2014 seeking $300,000.00 for defective works.
The homeowner’s claim was subsequently amended to seeks damages for breach of the contract, breach of statutory warranties, cost savings, costs, interest and interest on costs.
The builder’s application was made on 2 March 2015 seeking an amount of $103,313.02 for outstanding monies due under the contract and unpaid variations.
Both applications were subsequently amended seeking higher amounts and the quantum’s claimed shall be dealt with in greater detail below.

Jurisdiction of the Tribunal

It is not in contest when the parties contracted. However, on 11 July 2011, the parties executed three separate contracts. The first of the three contracts had been previously provided to the homeowners in about April 2011. The contracts were in the following amounts:
(i)Contract 1 was in the amount of $560,758.57.
(ii)Contract 2 was in the amount of $499,661.39.
(iii)Contract 3 was in the amount of $142,503.54.
While the terms…

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 Rathchime Pty Ltd v Willat; Willat v Rathchime

Details

AGLC: Rathchime Pty Ltd v Willat; Willat v Rathchime [2016] NSWCATCD 74
Case: [2016] NSWCATCD 74
Decision Date: 9 September 2016

CaseChat Overview and Summary

The case of Rathchime Pty Ltd v Willat; Willat v Rathchime involved a dispute between a builder, Rathchime, and homeowners, Mr and Mrs Willat. The conflict arose from the construction of a house, where issues of abandonment, repudiation, variations, and defects led to litigation. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The central legal issues were whether the homeowners had repudiated the contract and whether the builder had abandoned the project. Additionally, the court had to determine whether the builder was entitled to payment for variations and whether the builder had breached the contract by failing to complete the work to the required standard. The homeowners argued that the builder had abandoned the project due to non-payment and that they were entitled to terminate the contract. The builder, on the other hand, claimed that the homeowners had repudiated the contract and that they were entitled to payment for variations and completion of the work.

The court found that the homeowners had repudiated the contract by refusing to pay the builder for work completed and materials supplied. The court also found that the builder had not abandoned the project, despite the homeowners' claims. The builder was entitled to payment for variations and for the completion of the work to the required standard. The court further found that the builder had breached the contract by failing to complete the work to the required standard, but this breach did not entitle the homeowners to terminate the contract.

The orders made by the court included an immediate payment of $26,688.53 to the builder by the homeowners. The court also set out a schedule for the parties to provide submissions and documents in relation to costs. The court determined that costs would be decided on the papers unless either party sought to be heard in person.

Orders

Orders of the court

1. The homeowners are to pay the builder the amount of $26,688.53 immediately.

2. The parties are to provide to the Tribunal and each other, either in person or by post, submissions and documents in relation to costs by 15 September 2016.

3. The parties are to provide to the Tribunal and each other, either in person or by post, submissions and documents in reply on costs by 30 September 2016.

4. Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 30 September 2016, setting out the reasons why and the Registry will advise in due course.

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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