Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

Supreme Court New South Wales

Medium Neutral Citation: Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021 Hearing dates: 27 to 29 July 2020 Decision date: 07 August 2020 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Judgment for the first defendant in the sum of $76,510.68; (2) Order that the proceedings against the second defendant be dismissed; (3) Direct that (a) the defendants serve and provide to my Associate written submissions on the question of costs not exceeding 5 pages by 14 August 2020; (b) that the plaintiffs serve and provide to my Associate any submissions in response not exceeding 5 pages by 21 August 2020; (c) that the defendants serve any provide to my Associate any submissions in reply not exceeding 1 page by 26 August 2020; (d) the question of costs be determined on the papers. Catchwords: BUILDING AND CONSTRUCTION – Where damages for work done but not invoiced sought to be proved on a quantum meruit basis – Damages for delay – Where loss not established – Where loss too remote – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B. CONTRACT – Whether contract validly terminated – Where liquidated damages clause provides for nominal amount – Whether provision relating to liquidated damages provided an exclusive remedy for delay and, if it did, whether it was rendered void by the Home Building Act 1989 (NSW), s 18G. Legislation Cited: Home Building Act 1989 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 4 Hadley v Baxendale (1854) 9 Ex 341; (1854) 156 ER 145 Hobbs v London and South Western Railway Co (1875) LR 10 QB 111 J-Corp Pty Ltd v Mladenis [2009] WASCA 157 Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897 Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1; [2019] HCA 32 Pigott Foundations Ltd v Shepherd Construction Ltd (1994) 67 BLR 48 Temloc Ltd v Errill Properties Ltd (1987) 39 BLR 30 Wentworth Shire Council v Bemax Resources Ltd (2013) 278 FLR 264, [2013] NSWSC 1047 Texts Cited: J D Heydon, Heydon on Contract, Law Book Co, 2019 Rawlinsons Australian Construction Handbook 2018 (36th Ed, Rawlinsons Publishing) Category: Principal judgment Parties: Rosario Cappello (First Plaintiff) (Self Represented) Maria Cappello (Second Plaintiff) Hammond & Simonds NSW Pty Limited (First Defendant) John Re (Second Defendant) Representation: Counsel: In Person (First Plaintiff) DP O'Connor (Defendants)