Dierikx v Merrick [2021] NSWCATCD 159

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dierikx v Merrick [2021] NSWCATCD 159 Hearing dates: 18 January 2021 Date of orders: 17 February 2021 Decision date: 17 February 2021 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: 1. The first respondent is to pay the applicants $198,451.38 immediately. 2. Any application for costs is to be made by written submissions to be filed and served on or before Wednesday 03 March 2021. 3. Any submissions in response are to be filed and served on or before Wednesday 17 March 2021. 4. Any submissions made in compliance with order 2 or order 3 are to address the question of whether costs can be considered on the papers, ie without the need for a further hearing. Catchwords: BUILDING AND CONSTRUCTION — Contract —Repudiation — Termination — Home Building Act — Statutory warranties — Defence — Failure to mitigate — Assessment of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: AAD Build Pty Ltd v Garside [2015] NSWWCATCD 7 Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299 Bellgrove v Eldridge [1954] HCA 36 BH Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 Capello v Hammond & Simonds Pty Ltd [2020] NSWSC 1021 Carr v J A Berriman Pty Ltd [1953] HCA 31 Cohen v Zanzoul trading as Uniq Building Group [2020] NSWSC 592 Galdona v Peacock [2017] NSWCATAP 64 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Goncalves v Bora Developments Pty Ltd [2020] NSWCTAP 9 Government of Japan v Global Air Leasing Pty Ltd [2003] QSC 221 Haines v Bendall [1991] HCA 15 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSC 262 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 McDonald v Dennys Lascelles Ltd [1933] HCA 25 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Texts Cited: Nil Category: Principal judgment Parties: Scott Dierikx Lynda Dierikx (Applicants) Ty Merrick and Ty Merrick Building Pty Ltd (Respondents) Representation: Baker Love Lawyers (Applicants) CDG Law (Respondents) File Number(s): HB 19/56470 Publication restriction: Nil