Wesiak v D&R Constructions (Aust) Pty Ltd

The appeal concerned a dispute between Wesiak (the owners) and D&R Constructions (Aust) Pty Ltd (the builder) regarding a building contract. The owners sought leave to appeal a decision of the Appeal Panel of the Civil and Administrative Tribunal (NCAT) to the Court of Appeal. The core of the dispute involved whether the builder had repudiated the contract and whether the owners had validly accepted that repudiation.

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.