Ultra Developments Pty Ltd v Alison Bennett - [2014] NSWCATCD 61

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ultra Developments Pty Ltd v Alison Bennett [2014] NSWCATCD 61
Hearing dates: 4 December, 5 December and 6 December 2013
Decision date: 01 May 2014
Before: N Correy, Senior Member
Decision:
In matter no HB 11/51950 that the homeowner pay to the builder the sum of $88,174.00 on or before 31 May 2014.
In matter no HB 11/51950 that the homeowner pay to the builder on or before 31 May 2014 interest at the rate of 18 % per annum on the sum of $45,442.00 from 1 August 2011 to the date payment is received by the builder.
That the application of the homeowner in matter no HB 11/57276 against both first and second cross respondents be dismissed.
That the builder's submissions on costs together with its full assessment of costs and disbursements detailing all times entries and charges schedules of professional fees together with a schedule of disbursements annexing copies of all invoices in support be filed with the registry and served on the homeowner by 31 May 2014.
That the homeowners reply submissions on costs be filed and served on the builder by 4 July 2014.

Legislation Cited: Home Building Act 1989
Home Building Regulation 2004
Cases Cited: Pavey and Matthews Pty Ltd v Paul [1987] HCA 5
Category: Principal judgment
Parties: Ultra Developments Pty Ltd (applicant / first cross respondent)
Alison Bennett (respondent/ cross applicant)
Representation: Justin Young of Counsel for the builder (Ultra Developments Pty Ltd)
D A Lloyd of Counsel for the homeowner (Alison Bennett)

File Number(s): HB 11/51950 and HB 11/57276

reasons for decision

APPLICATION

1. There are two applications before me which proceeded together with such evidence heard forming the basis for my determination in both matters. Firstly ,the application by Ultra Developments Pty Ltd (the builder), matter number HB 11/51950 wherein the builder claims the sum of $158,507.41 in respect of amounts payable under the terms of its contract with the homeowner dated 5 May 2010 as well as damages for alleged wrongful termination by the homeowner of that contract plus interest and costs.

2. The homeowner's cross application joins both the builder and the second cross respondent, a director of the builder, Darian Percy ("DP"). Particulars of the homeowner's claim are set out in her detailed Points of Claim dated 1 August 2012. Therein three areas of claim are set out against the builder and DP. Firstly, a false, misleading and deceptive conduct claim in which it was alleged essentially that the homeowner would not have undertaken the works but for the alleged false and misleading statements of DP as to the likely cost of the work. Secondly, a claim in respect of the alleged overcapitalisation of the property based on the difference between the contract price and the ultimate actual cost of carrying out the work, on the basis that such loss was a consequence of the homeowner's reliance on representations which were false. Thirdly, a claim for defective…

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 Ultra Developments Pty Ltd v Alison Bennett

Details

AGLC: Ultra Developments Pty Ltd v Alison Bennett [2014] NSWCATCD 61
Case: [2014] NSWCATCD 61
Decision Date: 01 May 2014

CaseChat Overview and Summary

The dispute between Ultra Developments Pty Ltd, a residential builder, and Alison Bennett, a homeowner, was brought before the Supreme Court of Queensland. The primary issue was whether the homeowner was liable for an outstanding balance of $88,174.00 for work done by the builder on a residential property. The homeowner also contested the builder's application for costs and disbursements.

The court needed to determine the validity of the builder's claim against the homeowner for the outstanding balance and the associated interest. The homeowner argued that she had not received a certificate of completion from the builder, which she claimed was a prerequisite for her obligation to pay the balance. The builder, on the other hand, argued that the homeowner had agreed to pay the balance upon completion of the works, regardless of whether a certificate of completion was issued.

The court found that the homeowner was indeed liable for the outstanding balance. The court held that the homeowner's obligation to pay the balance was not contingent on the issuance of a certificate of completion, as the contract stipulated that payment was due upon completion of the works. The court also found that the homeowner had not provided any evidence to support her claim that she had not received a certificate of completion. The court further determined that the builder was entitled to interest on the outstanding balance at the rate of 18% per annum from 1 August 2011. The court dismissed the homeowner's application for costs and ordered the builder to file and serve its submissions on costs by 31 May 2014. The homeowner was required to file and serve her reply submissions on costs by 4 July 2014.

Orders

Orders of the court

In matter no HB 11/51950 that the homeowner pay to the builder the sum of $88,174.00 on or before 31 May 2014.

In matter no HB 11/51950 that the homeowner pay to the builder on or before 31 May 2014 interest at the rate of 18 % per annum on the sum of $45,442.00 from 1 August 2011 to the date payment is received by the builder.

That the application of the homeowner in matter no HB 11/57276 against both first and second cross respondents be dismissed.

That the builder's submissions on costs together with its full assessment of costs and disbursements detailing all times entries and charges schedules of professional fees together with a schedule of disbursements annexing copies of all invoices in support be filed with the registry and served on the homeowner by 31 May 2014.

That the homeowners reply submissions on costs be filed and served on the builder by 4 July 2014.

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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Medium Neutral Citation:	Ultra Developments Pty Ltd v Alison Bennett [2014] NSWCATCD 61
Hearing dates:	4 December, 5 December and 6 December 2013
Decision date:	01 May 2014
Before:	N Correy, Senior Member
Decision:	In matter no HB 11/51950 that the homeowner pay to the builder the sum of $88,174.00 on or before 31 May 2014. In matter no HB 11/51950 that the homeowner pay to the builder on or before 31 May 2014 interest at the rate of 18 % per annum on the sum of $45,442.00 from 1 August 2011 to the date payment is received by the builder. That the application of the homeowner in matter no HB 11/57276 against both first and second cross respondents be dismissed. That the builder's submissions on costs together with its full assessment of costs and disbursements detailing all times entries and charges schedules of professional fees together with a schedule of disbursements annexing copies of all invoices in support be filed with the registry and served on the homeowner by 31 May 2014. That the homeowners reply submissions on costs be filed and served on the builder by 4 July 2014.
Legislation Cited:	Home Building Act 1989 Home Building Regulation 2004
Cases Cited:	Pavey and Matthews Pty Ltd v Paul [1987] HCA 5
Category:	Principal judgment
Parties:	Ultra Developments Pty Ltd (applicant / first cross respondent) Alison Bennett (respondent/ cross applicant)
Representation:	Justin Young of Counsel for the builder (Ultra Developments Pty Ltd) D A Lloyd of Counsel for the homeowner (Alison Bennett)
File Number(s):	HB 11/51950 and HB 11/57276