SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 Hearing dates: 30, 31 March 2021; 8 July 2021; written submissions timetable to 21 September 2021; agreed transcript filed 15 October 2021 Date of orders: 15 February 2022 Decision date: 15 February 2022 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: 1. In Matter HB 20/42551 SDL Project Solutions Pty Ltd is to pay James Jong In Kim the sum of $112,853.21 within 28 days of the date of this decision. 2. In Matter HB 20/32292, the application is dismissed. 3. The homeowner is to file and serve all costs submissions and documents by 14 days from the date of this decision. 4. The builder is to file and serve all costs submissions and documents by 28 days from the date of this decision. 5. The homeowner is to file and serve all costs submissions in reply by 35 days from the date of this decision. 6. The costs submissions are to include reference to whether or not the parties seek a further oral hearing on the issue of costs. The Tribunal may determine it appropriate to decide the issue of costs without further oral hearing pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 7. The costs documents and submissions are to be filed in hard copy with the Tribunal. 8. Both parties have leave to apply in writing to vary or extend the timetable for costs submissions and documents. Catchwords: BUILDING AND CONSTRUCTION — Home building —Termination of contract — Repudiation — Which party lawfully terminated contract — Building defects — Incomplete work — Payments made under contract — Assessment of damages — Quantum meruit claim by builder — Principles applicable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Australian Financial Services and Leasing Pty Ltd v Hills Industries Limited [2014] HCA 14; (2014) 253 CLR 560 Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 CCS 251 Elizabeth St Pty Ltd v Hellenic Club Ltd [2021] NSWCATAP 279 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 DB Homes Australia v Kes [2019] NSWCATAP 221 DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100 Hadley v Baxendale (1854) 156 ER 145 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 Hyder Consulting Australia Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd and Anor [2001] NSWCA 313 In the Matter of Hillsea Pty Limited [2019] NSWSC 1152 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 2 Leung v Alexakis [2018] NSWCATAP 11 Llamas v Rockwall Constructions Pty Ltd; Rockwall Constructions Pty Ltd v Llamas [2019] NSWCATCD 75 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 22 Rekrut and Scott v Champion Homes Sales Pty Ltd [2017] NSWCATAP 187 Repfix Industries Pty Ltd v FBD Group [2020] NSWDC 514 Rice v JR and SD Farmer t/as Urban Bespoke Homes [2020] NSWCATAP 208; Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51 Roude v Helwani [2020] NSWCA 310 Rudas and Andrassy v Eid [2021] NSWCATAP 4 Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC Suecha Pty Ltd v VSD Glass & Timber Pty Ltd [2020] NSWCATAP 170 Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd [2009] HCA 8 [17]; (2009) 236 CLR 272 Thurston v Goway Travel Pty Limited [2020] NSWCATAP 140 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Woodward v Warwick Green Building Pty Ltd [2021] NSWCATAP 210 Texts Cited: Nil Category: Principal judgment Parties: Matter HB 20/32292: SDL Project Solutions Pty Ltd (Applicant) James Kim (Respondent)