Zeman v Bollard - [2015] NSWCATCD 13

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Zeman v Bollard [2015] NSWCATCD 13
Hearing dates: 12 June 2014 and 8 December 2014
Decision date: 22 January 2015
Jurisdiction: Consumer and Commercial Division
Before: M Harrowell, Principal Member
Decision:
1. The respondent, Craig Bollard is to pay to the applicant, Zanja Zeman the sum of $100,000.00 on or before 2 March 2015.
2. Any application for costs is to be made on or before 4 February 2015.Any application is to be in writing to the Tribunal supported by any evidence and submissions. The application and supporting documents must be served on the other party within that time.
3. Any evidence and submissions in reply from the party opposing the application for costs is to be filed and served on or before 13 February 2015.
4. Any submissions in reply from the party applying for costs are to be filed and serve on or before 20 February 2015.
The parties are to advise the Tribunal in the submissions whether they consent to the issue of costs being dealt with on the papers. 5. Alternatively the parties are to make submissions as to why such an order should not be made pursuant to section 50 of the Civil and Administrative Tribunal Act, 2013.

Catchwords: Right to terminate for repudiation,
Termination under contract for substantial breach
Election following accrued right
Abandonment
Whether breach of contract occurs at time non-conforming works are constructed, whether or not time for delivery of completed works has arisen.
Liability for breaches occurring prior to abandonment
Legislation Cited: Home Building Act 1989
Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613;
Lintest Builders v Roberts (1980) 13 BLR 38;
Majik Markets Pty Ltd v Motor Repairs Pty Ltd (No 1) (1987) 10 NSWLR 49;
Ryder and Anr v Frohlich and Anr [2004] NSWCA 472;
Texts Cited: Contract Law in Australia 5th Edition, Carter, Peden and Tolhurst
Category: Principal judgment
Parties: Applicant: Zanja Zeman:
Respondent: Craig Bollard trading as Clearwater Homes:
Representation: Counsel: Applicant: B Bradley
Solicitors: Applicant: Mason Lawyers
Respondent: M Ohlson, MJ Ohlson Lawyers

File Number(s): HB 11/54282
Publication restriction: Nil

reasons for decision

Ms Zeman (applicant) is the owner of a property at Ocean Shores.
On 29 March 2010 the applicant entered into an HIA cost plus contract (contract) with Mr Bollard who trades as Clearwater Homes (respondent) to carry out residential building work on the property.
Various disputes between the parties arose in connection with performance of the contract and on 28 February 2011 the applicant commenced the present proceedings, HB 11/54282 (homeowner’s proceedings) against the respondent in the District Court of New South Wales being proceedings number 2011/64798. These proceedings were transferred to the Consumer Trader and Tenancy Tribunal by order of the District Court made 24 October 2011.
The proceedings were fixed for hearing before the Tribunal on 12 June 2014 and were adjourned part heard until 8 December 2014.
There were related proceedings brought in the Tribunal by the…

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 Zeman v Bollard

Details

AGLC: Zeman v Bollard [2015] NSWCATCD 13
Case: [2015] NSWCATCD 13
Decision Date: 22 January 2015

CaseChat Overview and Summary

In Zeman v Bollard, the applicant, Zanja Zeman, sought to enforce a contractual right to terminate against the respondent, Craig Bollard, following a substantial breach of contract. The dispute arose from a contract for construction works, where the respondent allegedly failed to deliver conforming works within the stipulated time. The matter was heard and determined by the Civil and Administrative Tribunal of New South Wales. The primary legal issue before the court was whether a breach of contract occurs at the time non-conforming works are constructed, irrespective of whether the time for delivery of completed works has arisen. Additionally, the court had to consider the respondent's liability for breaches occurring prior to the abandonment of the contract.

The court found that a breach of contract can indeed occur at the time non-conforming works are constructed, even if the time for delivery has not yet arisen. This determination was based on the contractual terms and the established principle that the right to terminate for substantial breach accrues when the breach occurs. The court emphasised that the right to terminate is not contingent upon the passage of time or the occurrence of a specific event, such as the delivery date. Furthermore, the court held that the respondent remained liable for breaches that occurred prior to the abandonment of the contract. This liability was not extinguished by the applicant's decision to continue with the project and seek completion of the works.

The court ordered the respondent to pay the applicant $100,000.00 within a specified timeframe. Additionally, the court provided detailed instructions regarding the procedure for any application for costs, including deadlines for filing and serving written applications and responses. The parties were also directed to advise whether they consented to the issue of costs being dealt with on the papers or to make submissions as to why such an order should not be made pursuant to section 50 of the Civil and Administrative Tribunal Act, 2013.

Orders

Orders of the court

1. The respondent, Craig Bollard is to pay to the applicant, Zanja Zeman the sum of $100,000.00 on or before 2 March 2015.

2. Any application for costs is to be made on or before 4 February 2015.Any application is to be in writing to the Tribunal supported by any evidence and submissions. The application and supporting documents must be served on the other party within that time.

3. Any evidence and submissions in reply from the party opposing the application for costs is to be filed and served on or before 13 February 2015.

4. Any submissions in reply from the party applying for costs are to be filed and serve on or before 20 February 2015.

The parties are to advise the Tribunal in the submissions whether they consent to the issue of costs being dealt with on the papers. 5. Alternatively the parties are to make submissions as to why such an order should not be made pursuant to section 50 of the Civil and Administrative Tribunal Act, 2013.

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:	Zeman v Bollard [2015] NSWCATCD 13
Hearing dates:	12 June 2014 and 8 December 2014
Decision date:	22 January 2015
Jurisdiction:	Consumer and Commercial Division
Before:	M Harrowell, Principal Member
Decision:	1. The respondent, Craig Bollard is to pay to the applicant, Zanja Zeman the sum of $100,000.00 on or before 2 March 2015. 2. Any application for costs is to be made on or before 4 February 2015.Any application is to be in writing to the Tribunal supported by any evidence and submissions. The application and supporting documents must be served on the other party within that time. 3. Any evidence and submissions in reply from the party opposing the application for costs is to be filed and served on or before 13 February 2015. 4. Any submissions in reply from the party applying for costs are to be filed and serve on or before 20 February 2015. The parties are to advise the Tribunal in the submissions whether they consent to the issue of costs being dealt with on the papers. 5. Alternatively the parties are to make submissions as to why such an order should not be made pursuant to section 50 of the Civil and Administrative Tribunal Act, 2013.
Catchwords:	Right to terminate for repudiation, Termination under contract for substantial breach Election following accrued right Abandonment Whether breach of contract occurs at time non-conforming works are constructed, whether or not time for delivery of completed works has arisen. Liability for breaches occurring prior to abandonment
Legislation Cited:	Home Building Act 1989
Cases Cited:	Bellgrove v Eldridge (1954) 90 CLR 613; Lintest Builders v Roberts (1980) 13 BLR 38; Majik Markets Pty Ltd v Motor Repairs Pty Ltd (No 1) (1987) 10 NSWLR 49; Ryder and Anr v Frohlich and Anr [2004] NSWCA 472;
Texts Cited:	Contract Law in Australia 5th Edition, Carter, Peden and Tolhurst
Category:	Principal judgment
Parties:	Applicant: Zanja Zeman: Respondent: Craig Bollard trading as Clearwater Homes:
Representation:	Counsel: Applicant: B Bradley Solicitors: Applicant: Mason Lawyers Respondent: M Ohlson, MJ Ohlson Lawyers
File Number(s):	HB 11/54282
Publication restriction:	Nil