Simmonds v Rust; Rust v Simmonds

Case [2018] NSWCATCD 75


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75
Hearing dates: 17 and 18 September 2018
Date of orders: 29 November 2018
Decision date: 29 November 2018
Jurisdiction:Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:

1. In HB 17/29871 Christopher John Rust must pay Benjamin Frank Hind Simmonds and Jessica Marion Simmonds the sum of $161,437.02.

 

2. In HB 18/15368 Benjamin Frank Hind Simmonds and Jessica Marion Simmonds must pay Christopher John Rust the sum of $37,663.03.

 

3. 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.

 

4. 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.

 

5. 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.

 

6.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.

 7. 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 – Home building -Contracts – Standard form HIA NSW Residential Building Contract for New Dwellings – Payment of progress claims - Suspension of work, - Notices of breach - Termination - Cost to complete – Defective work
Legislation Cited: Home Building Act 1989
Cases Cited: Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100
Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
Lifestyle Designer Homes Pty Ltd v Choy (Home Building) [2012] NSWCTTT 217
Mitsiou v Zanatta; Jenalp Pty Limited v Mitsiou [2018] NSWCATAP 187
Palser v Grinling [1948] AC 291
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd [1982] FCA 206; (1982) 44 ALR 557
Robinson v Harman (1848) 1 Ex.850
Sabemo Pty Ltd v de Groot (1992) 8 BCL 132
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union & Ors [1979] FCA 85; (1979) 27 ALR 367
Triden Contractors Pty Ltd v Belvista Pty Ltd (1986) 3 BCL 203
Yendex Pty Ltd v Prince Constructions Pty Ltd 5 BCL, 74
Category:Principal judgment
Parties:

In HB 17/29871:
Benjamin and Jessica Marion Simmonds (Applicants)
Christopher Rust (Respondent)

  In HB 18/15368:
Christopher Rust (Applicant)
Benjamin and Jessica Marion Simmonds
Representation: Counsel:
Mr.T Bland (Applicants)
Mr…

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Details
AGLC
Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75
Case
[2018] NSWCATCD 75
Decision Date

CaseChat Overview and Summary

The dispute between Benjamin Frank Hind Simmonds and Jessica Marion Simmonds (the plaintiffs) and Christopher John Rust (the defendant) arose from a home building contract governed by the Standard form HIA NSW Residential Building Contract for New Dwellings. The plaintiffs commissioned Rust to construct a new dwelling, and the dispute centered on the payment of progress claims, suspension of work, notices of breach, termination, and the cost to complete due to defective work. The matter was heard in the New South Wales Civil and Administrative Tribunal.

The central legal issues the Tribunal addressed included whether the plaintiffs had correctly suspended work due to non-payment, whether the notices of breach were valid, and if the termination of the contract was justified. Additionally, the Tribunal had to determine the cost to complete the defective work and the associated damages, if any.

In its decision, the Tribunal found that the plaintiffs had validly suspended work due to non-payment and that the notices of breach were correctly issued. The Tribunal also upheld the termination of the contract. However, the Tribunal ruled that the cost to complete the defective work was overstated. Consequently, the Tribunal ordered the defendant to pay the plaintiffs $161,437.02 and the plaintiffs to pay the defendant $37,663.03. The Tribunal provided detailed instructions regarding the lodging and response to any costs applications, emphasizing the importance of timely submissions and the potential for determining costs on the basis of written submissions.

Orders

Orders of the court

1. In HB 17/29871 Christopher John Rust must pay Benjamin Frank Hind Simmonds and Jessica Marion Simmonds the sum of $161,437.02.

2. In HB 18/15368 Benjamin Frank Hind Simmonds and Jessica Marion Simmonds must pay Christopher John Rust the sum of $37,663.03.

3. 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.

4. 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.

5. 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.

6.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.

7. 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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