Schmuelly v Elrob Construction Group Pty Ltd (No 3) [2025] NSWSC 118

Supreme Court New South Wales

Medium Neutral Citation: Schmuelly v Elrob Construction Group Pty Ltd (No 3) [2025] NSWSC 118 Hearing dates: 3, 4 February 2025 Date of orders: 6 March 2025 Decision date: 06 March 2025 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Damages awarded. Catchwords: CONSUMER LAW — misleading or deceptive conduct — whether builder misrepresented his experience in building luxury homes — represented this was his "passion" — whether representation made – whether representation misleading – "puffery" — principles at [16]-[18]. CONTRACTS — repudiation – principles at [99]-[101] – building 'stalls' for a year — owner indecisive about windows and doors quote — builder requests shop drawings for layout and joinery, which are not forthcoming – owner seeks legal advice but does not tell builder of complaints – no response to builder's follow ups – builder advises intention to remove scaffolding – no reply – scaffolding removed. DAMAGES — rectification of defects – whether entitled to costs to complete works — mitigation – principles at [91]-[97] – overpayments of milestone payments – overcharged variations. Legislation Cited: Civil Procedure Act 2005 (NSW) s 100 Competition and Consumer Act 2010 (Cth) ss 2(1), 236, 237, 243 Australian Consumer Law Home Building Act 1989 (NSW), ss 18B, 18BA(1)(b) Cases Cited: Aslan v Stepanoski [2022] NSWCA 24 Australian Competition and Consumer Commission v Coles Supermarkets (2014) 317 ALR 73; [2014] FCA 634 Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) 244 ALR 470; [2007] FCA 1904 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115 at 135; [2007] HCA 61 Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Mediation & Online Dispute Resolution Operating Network P/L [2022] NSWSC 5 Owners SP 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 130 The Owners – Strata Plan No 89074 v Ceerose Pty Ltd [2024] NSWSC 1494 Watson v Foxman (1995) 49 NSWLR 315 Wenham v Ella (1972) 127 CLR 454 Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Texts Cited: Damien Cremean, Micheal Whitten, Micheal Sharkey, Brooking on Building Contracts (6th ed, 2020, LexisNexis) Category: Principal judgment Parties: Dror Schmuelly (Plaintiff) Elrob Construction Group Pty Ltd (First Defendant) Elia Boujaoude (Second Defendant) Representation: Counsel: M Pesman SC (Plaintiff)