Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Hearing dates: 29/07/2016 Date of orders: 15 December 2016 Decision date: 15 December 2016 Before: Beazley P [1];
Simpson JA [2];
McDougall J [3]Decision: Grant leave to appeal. Appeal allowed with costs.
Catchwords: APPEAL – leave to appeal – appeal from Appeal Panel of Civil and Administrative Tribunal – where appeal is only available on a question of law – whether finding of repudiation was not reasonably open on the whole of the evidence – whether error of law – Civil and Administrative Tribunal Act 2013, s 83(1)
BUILDING AND CONSTRUCTION – construction and interpretation of contracts – question of repudiation – whether one party had repudiated the contract and the other party accepted the repudiation – where builder under mistaken belief that owners terminated the contract – where builder failed to perform essential term of the contract which amounted to a renunciation of its obligations under the contract – whether repudiation can amount to an error of law – where, on the whole of the evidence, the Appeal Panel could not rationally find that the owners repudiated the contract
CONTRACT – repudiation – effect of breach on purported acceptance of repudiation – whether a party that is itself in breach may accept the other party’s repudiation and terminate the contract - whether it was the first party’s breach that provoked the other party’s repudiatory conductLegislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), ss 119, 120
Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 81, 83, 84
Land and Valuation Court Act 1921 (NSW), s 17
Supreme Court Act 1970 (NSW), s 75A
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148Cases Cited: Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
B&L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Bell v Federal Commissioner of Taxation [2012] FCA 1042
Bruce v Cole (1998) 45 NSWLR 163
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327; [1953] HCA 31
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Foran v Wight (1989) 168 CLR 385; [1989] HCA 51
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47; [1956] HCA 21
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Laurinda Pty Ltd v Capalaba Park…
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- AGLC
- Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353
- Case
- [2016] NSWCA 353
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the Appeal Panel of NCAT had erred in law in finding that the owners had repudiated the contract. Specifically, the court had to determine if the Appeal Panel's finding of repudiation was reasonably open on the whole of the evidence, or if it constituted an error of law under section 83(1) of the *Civil and Administrative Tribunal Act 2013* (NSW). This also involved considering whether a party in breach could accept the other party's repudiation, and whether the builder's own breach had provoked the owners' alleged repudiatory conduct.
The Court of Appeal reasoned that the Appeal Panel had made an error of law by finding that the owners had repudiated the contract. The court concluded that, on the entirety of the evidence, it was not rationally open for the Appeal Panel to find that the owners had repudiated their obligations under the contract. The builder's failure to perform an essential term of the contract was identified as a significant factor, amounting to a renunciation of its obligations, and the court considered whether this conduct could be seen as provoking the owners' alleged repudiation.
Leave to appeal was granted, and the appeal was allowed with costs.
Orders
Orders of the court
Grant leave to appeal. Appeal allowed with costs.
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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