Mirosevich v Haddad & Haddad [2000] NSWFTT 4

Fair Trading Tribunal New South Wales

CITATION: Mirosevich v Haddad & Haddad [2000] NSWFTT 4 DIVISION: Home Building Division PARTIES: APPLICANT: Mirosevich RESPONDENT: Haddad & Haddad FILE NUMBER: BU 1999/1310 HEARING DATES: 29/2/00; 1/3/00 & 2/3/00 SUBMISSIONS CLOSED: 22/03/2000 DATE OF DECISION: 27/05/2000

BEFORE: Mr J Gallagher Senior Member - Ms EJ Grinston Member LEGISLATION CITED : Home Building Act 1989 - ss89A Vitol SA v Norelf Ltd (1994) 4 All ER 109 at 114 Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 351-2 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 658 CASES CITED: Fercometal Sarl v Mediterranean Shipping Co SA (1989) AC788 Ross T Smyth and Co Ltd v TD Bailey and Son and Co (1940) 3 All ER 60 at 72 Lunar Park (NSW) Ltd v Trainways Advertising Pty Ltd (1938) 61 CLR 286 Bowes v Chaleyer (1923) 32 CLR 159 CATCHWORDS: Building dispute - purported repudiation of the building contract - purported breach of contract MATTER FOR DECISION: Application under s89A of Home Building Act 1989 REPRESENTATION: APPLICANT: Ms E Olsson of Counsel RESPONDENT: Mr T Davie of Counsel ORDERS: 1. The Tribunal determines that the Applicant repudiated the Contract dated June 1998 between the parties and the Respondents accepted that repudiation and terminated the Contract.

Reasons for Decision:

Background 1 On 2 June 1998, Mirosevich ("Applicant") entered into a building agreement with Haddad and Haddad ("Respondents") for the construction of a home on their property at ..., Castle Hill. It is not in dispute that work commenced on 25 May 1998 with the demolition of an existing house on the property. As work proceeded over the next few months, relations between the parties became strained, deteriorating to a point where the Respondents' former solicitors, Kalmath Lawyers, wrote on 19 November 1998 to the Applicant alleging he was in breach of the building agreement due to various acts or omissions listed in that letter. The Applicant's former solicitors, Tillyard & Callanan, replied to that letter on 2 December 1998 denying any breach by the Applicant. On the same date, the Applicant signed a Notice of Suspension of Works and a Notice of Extension of Time prepared by his solicitors and these were subsequently served on the Respondents.