Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor [2020] NSWCA 358

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor [2020] NSWCA 358 Hearing dates: 19 June 2020; further written submissions 26, 30 June and 14 July 2020 Decision date: 24 December 2020 Before: Basten JA at [1]; Macfarlan JA at [2]; White JA at [3] Decision: (1) Appeal allowed in part. (2) Set aside the orders entered in the District Court on 20 November 2019. (3) In lieu thereof direct entry of judgment for the respondents against the appellant in the sum of $35,548.58. (4) Order that the respondents repay to the appellant moneys paid by the appellant to the respondents in reduction of the judgment entered in the District Court to the extent moneys paid exceed the judgment to be entered in accordance with order 3, together with interest at the rates prescribed for the purposes of s 100 of the Civil Procedure Act 2005 (NSW). (5) Order that the respondents pay the appellant's costs of the appeal. (6) Order that within 28 days the appellant file and serve written submissions of no more than six pages as to what order should be made as to the costs of the proceedings below and any evidence to be relied upon on that question. (7) Order that within 21 days thereafter the respondents file and serve written submissions and any evidence to be relied upon on that question. (8) Any submissions in reply be filed and served seven days thereafter. (9) Reserve the question of costs of the proceedings below, to be dealt with on the papers, subject to any further order. Catchwords: BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed Legislation Cited: Home Building Act 1989 (NSW), s 18B, s 18F Civil Procedure Act 2005 (NSW), s 100 Cases Cited: Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Builders Insurers' Guarantee Corporation v The Owners – Strata Plan 60848 [2012] NSWCA 375 Building Insurers Guarantee Corp v The Owners – Strata Plan No 57504 [2010] NSWCA 23 Heskell v Continental Express Ltd [1950] 1 All ER 1033 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 The Owners – Strata Plan No. 64757 v MJA Group Pty Ltd (2011) 81 NSWLR 426; [2011] NSWCA 236 The Owners – Strata Plan No. 66375 v King [2018] NSWCA 170 Wylie v ANI Corp Ltd [2002] 1 Qd R 320; [2000] QCA 314 Texts Cited: J D Heydon, Heydon on Contract (Lawbook Co, 2019) Category: Principal judgment Parties: Ostin Constructions Pty Ltd t/as Lars Fischer Construction (Appellant) Katherine Ostin (First Respondent) Craig Shortus (Second Respondent) Representation: Counsel: J Doyle with I King (Appellant) P Bambagiotti with A Wilson (Respondents)