Kevest v Spiteri & Ors [2002] NSWSC 22

New South Wales Supreme Court

CITATION : Kevest v Spiteri & Ors [2002] NSWSC 22 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12393 of 2001 HEARING DATE(S) : 29 January 2002 JUDGMENT DATE : 4 February 2002

Kevest Pty Limited trading as Denmay Homes (Plaintiff) PARTIES : v Edwin Spiteri (First Defendant) Ann Spiteri (Second Defendant) Fair Trading Tribunal of New South Wales (Third Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Fair Trading Tribunal of New South Wales JURISDICTION : LOWER COURT BU 2000/111 FILE NUMBER(S) : LOWER COURT Ian McDonell, Deputy Chairperson, David Baker, Member JUDICIAL OFFICER :

Mr T Lynch (Plaintiff) COUNSEL : E Olsson (First and Second Defendants) N/A (Third Defendant) Snelgrove & O'Brien (Plaintiff) SOLICITORS : Gerard O'Donnell (First and Second Defendants) I V Knight - Crown Solicitor - Submitting appearance (Third Defendant) CATCHWORDS : Appeal from Tribunal - construction of clause 17 of Housing Industry Association "Plain English Building Agreement Edition 11" and consideration of the right of termination thereby conferred. LEGISLATION CITED : N/A CASES CITED : Brenmar Building Co Pty Ltd v The University of Newcastle (Court of Appeal - 12 December 1977). DECISION : See Paragraph 38.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass MONDAY 4 FEBRUARY 2002 12393 of 2001 Kevest Pty Limited trading as Denmay Homes –v- Edwin Spiteri & Ors JUDGMENT 1 Master Malpass: The plaintiff is a builder. The first and second defendants are the owners of the property known as Lot 408 Grosvenor Place West Pennant Hills. On 11 March 1998, these parties entered into a written agreement for the undertaking of residential building work (including the construction of a large two storey home). In the agreement, the plaintiff is referred to as the contractor. 2 The agreement is in the form of Edition 11 produced by the Housing Industry Association and available for use by its members. It is entitled "Plain English Building Agreement". It contained inter alia clause 17. This clause is headed "Termination Of Contract By Owner" and is in the following terms:- "The Owner may, subject to the following, end this Agreement if the Contractor: (a) becomes bankrupt or executes a deed of Assignment or arrangement or makes any Composition for the benefit of creditors; or, (b) goes into liquidation, either voluntary or compulsory, or has a Receiver or Official Manager appointed; or, (c) fails to proceed with the Building Works with all due diligence; or, (d) fails to proceed with the Building Works in a competent and workmanlike manner; or, (e) without reasonable cause suspends the Building Work before Practical Completion; or, (f) refuses or neglects to comply with any obligations under this Agreement; or, (g) fails to remove or remedy any defective work (as directed by the warranty insurer) within the time allowed;