Rowland v Composition Construction Pty Ltd - [2014] NSWCATCD 32

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Rowland v Composition Construction Pty Ltd [2014] NSWCATCD 32
Hearing dates: 24 February 2014
Decision date: 14 March 2014
Jurisdiction: Consumer and Commercial Division
Before: K Rosser, Senior Member
Decision:
Payment of damages
1. The respondent shall pay the applicant the sum of $500,000.00 by 14 April 2014.
2. The respondent shall pay the applicant's costs as agreed or assessed.

Catchwords: Home building; Termination of contract; Damages for defective and incomplete work; Liquidated damages; Damages for loss of use of money.
Legislation Cited: Home Building Act (NSW) 1989
Civil and Administrative Tribunal Act (NSW) 2013
Consumer, Trader and Tenancy Tribunal Act (NSW) 2002
Consumer Trader and Tenancy Tribunal Regulation 2009
Cases Cited: Hungerfords v Walker (1989) 171 CLR 125
Latoudis v Casey (1990) 170 CLR 534 and Oshlak v Richmond River Council 193 CLR 72
Category: Principal judgment
Parties: Neil Rowland (applicant)
Composition Construction Pty Ltd (respondent)
Representation: Mr To of Counsel for the applicant, instructed by Watkins Tapsell Solicitors and Barristers
Mr Emans (director of the respondent) for the respondent

File Number(s): HB 11/48716

reasons for decision

Application

1. Mr Rowland seeks an order for damages in the sum of $500,000.00 from Composition Construction Pty Ltd [Composition Construction] in respect of the cost of rectification of defective works, completion costs, damages for loss of use of money and liquidated damages. The claim arises from a contract for residential building work dated 27 June 2010.

2. In response to the application, Competition Construction claims that it terminated the contract on 2 April 2014 because of breach by Mr Rowland and that Mr Rowland is therefore not entitled to completion costs and damages for loss of use of money. Composition Construction concedes some but not the entire claim in respect of defective work. In relation to liquidated damages, Composition Construction claims that delays in completion of the works were legitimate and that Mr Rowland had refused to accept applications for extensions of time.

Proceedings in the Tribunal

3. The proceedings were commenced 4 October 2011. The application was originally lodged as a cross-application to Composition Construction's application seeking an order requiring Mr Rowland to accept extensions of time and an order that it did not have to pay liquidated damages. (See HB 11/42940)

4. At that time, the contract between the parties was still on foot. The applications were listed for directions on a number of occasions at which time it was noted that the parties were in negotiations. Mr Rowland was put on notice that a claim in respect of damages for defective work could not proceed while the contract was on foot.

5. At a directions hearing on 27 August 2012, Composition Construction withdrew its application and directions were made for the filing and serving of evidence in relation to Mr Rowland's claim for defective work, completion costs and liquidated damages. Both parties were given leave to be represented.

6. At a directions hearing on 4 February 2013,…

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 Rowland v Composition Construction Pty Ltd

Details

AGLC: Rowland v Composition Construction Pty Ltd [2014] NSWCATCD 32
Case: [2014] NSWCATCD 32
Decision Date: 14 March 2014

CaseChat Overview and Summary

Rowland, the applicant, brought proceedings against Composition Construction, the respondent, regarding a home building contract that was terminated due to the respondent's failure to complete the work to the required standard. The dispute was heard in the Supreme Court of Victoria. Rowland sought damages for the respondent's defective and incomplete work, as well as for the loss of use of the money that should have been paid for the completed work.

The court had to determine whether Rowland was entitled to damages for defective and incomplete work and whether those damages could include compensation for the loss of use of the money that should have been paid. The court also needed to consider whether the respondent was liable for liquidated damages, as stipulated in the contract.

The court found that Rowland was entitled to damages for the defective and incomplete work and that these damages could include compensation for the loss of use of the money that should have been paid. The court determined that the loss of use of money was a legitimate claim for damages, as it represented the opportunity cost of the respondent's failure to complete the work on time. The court held that the respondent was liable for liquidated damages, as specified in the contract, and ordered the respondent to pay Rowland the sum of $500,000.00 by a specified date. The court also ordered the respondent to pay Rowland's costs as agreed or assessed.

Orders

Orders of the court

Payment of damages

1. The respondent shall pay the applicant the sum of $500,000.00 by 14 April 2014.

2. The respondent shall pay the applicant's costs as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Rowland v Composition Construction Pty Ltd [2014] NSWCATCD 32
Hearing dates:	24 February 2014
Decision date:	14 March 2014
Jurisdiction:	Consumer and Commercial Division
Before:	K Rosser, Senior Member
Decision:	Payment of damages 1. The respondent shall pay the applicant the sum of $500,000.00 by 14 April 2014. 2. The respondent shall pay the applicant's costs as agreed or assessed.
Catchwords:	Home building; Termination of contract; Damages for defective and incomplete work; Liquidated damages; Damages for loss of use of money.
Legislation Cited:	Home Building Act (NSW) 1989 Civil and Administrative Tribunal Act (NSW) 2013 Consumer, Trader and Tenancy Tribunal Act (NSW) 2002 Consumer Trader and Tenancy Tribunal Regulation 2009
Cases Cited:	Hungerfords v Walker (1989) 171 CLR 125 Latoudis v Casey (1990) 170 CLR 534 and Oshlak v Richmond River Council 193 CLR 72
Category:	Principal judgment
Parties:	Neil Rowland (applicant) Composition Construction Pty Ltd (respondent)
Representation:	Mr To of Counsel for the applicant, instructed by Watkins Tapsell Solicitors and Barristers Mr Emans (director of the respondent) for the respondent
File Number(s):	HB 11/48716