DCR Constructions (NSW) Pty Ltd t/as True Built v Matthews; Matthews v DCR Constructions (NSW) Pty Ltd t/as True Built [2019] NSWCATCD 79

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DCR Constructions (NSW) Pty Ltd t/as True Built v Matthews; Matthews v DCR Constructions (NSW) Pty Ltd t/as True Built [2019] NSWCATCD 79 Hearing dates: 25, 26 September 2018; 17,18 December 2018 Date of orders: 16 October 2019 Decision date: 16 October 2019 Jurisdiction: Consumer and Commercial Division Before: G.J. Sarginson, Senior Member Decision: 1. In Matter HB 17/31284, the application is dismissed. 2. In Matter HB 17/44021, DCR Constructions (NSW) Pty Ltd is to pay Gary Matthews the sum of $184,252.17 by 28 days from the date of this decision. 3. In both Matter HB 17/31284 and Matter HB 17/44021, DCR Constructions (NSW) Pty Ltd is to pay Gary Matthews costs of both proceedings as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW). 4. Either party may make an application for an alternative costs order to order 3 above by written application filed with the Tribunal and served on the other party by 14 days from the date of this decision. If such an application is made, the Tribunal will issue directions to the parties regarding submissions. If no application is made, order 3 remains unchanged. Catchwords: BULDING AND CONSTRUCTION---Termination of contract---Which party lawfully terminated---Repudiation---Frustration---Defective work---Incomplete work---Assessment of appropriate remedy Legislation Cited: Australian Consumer Law 2010 Civil and Administrative Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Champion Home Sales Pty Ltd v Bailey [2018] NSWCATAP 212 Cherry v Steele Park [2017] NSWCA 295 Clements v Murphy [2018] NSWCATAP 152 Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1163 DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221 Hartley v McRae [2018] NSWCATCD 31 Liebe v Molloy [1906] HCA 67 Lumbers v W Cook Buildings Pty Ltd (in liq) (2008) 232 CLR 635 Mann v Paterson Construction Pty Ltd [2019] HCA 32 oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 Oshlack v Richmond River Council [1993] HCA 11; (1993) 193 CLR 73 Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange [2019] NSWSC 897 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 ;(2009) 236 CLR 272 Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327 Texts Cited: Coggins, Davie, Earls and Evans; Understanding Construction Law; Lexis Nexis Butterworths 2016 Category: Principal judgment Parties: Matter HB 17/31284