Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8 Hearing dates: 27 August 2013, 28 August 2013, 29 August 2013 Decision date: 10 January 2014 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: 1 The respondent to pay the applicant $47,296.00 within 21 days of the date of this order. 2 Costs reserved pending receipt of written submissions to be filed and served by 29 January 2014 in the case of the applicant and by 7 February 2014 in the case of the respondent. Legislation Cited: Home Building Act 1989 Cases Cited: Broulee Developments Pty Ltd v Mackay [2008] NSWSC 32 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138CLR423 Ryder v Frohlich [2004] NSWCA 472 Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178 Category: Principal judgment Parties: Owners Corporation Strata Plan 70762 (Applicant) L and C Platt Constructions Pty Ltd (Respondent) Representation: MJ Dawson (Applicant) M McCall (Respondent) File Number(s): HB 09/24088

reasons for decision

INTRODUCTION

APPLICANTS CASE (OVERVIEW) 1The applicant's contentions are set out in the following paragraphs. 2The applicant entered into a contract with a builder (AAC Titwall Constructions Pty Ltd) ("Titwall") which resulted in defective work. The applicants insurer agreed to indemnify the applicant in respect of the defective work of Titwall and the respondent became the builder engaged to rectify the work of Titwall. A contract was entered into between the applicant and the respondent and is dated 9 June 2008 (the "Building Contract"). A copy of the Building Contract appears in Exhibit D page 131. The building concerns an apartment complex of 3 storeys consisting of three retail shop fronts, 14 residential units and a car park. The respondent issued an invoice for $6,500.00 addressed to the applicant. That sum constituted the excess under the insurance policy between the applicant and its insurer. The respondent invoiced the applicant the sum of $33,721.00 being the 5% deposit required under the Building Contract. The applicant paid these two sums to the respondent. 3The subject of the Building Contract was the rectification work identified by items in a report known as the Sergon report. The respondent quoted in respect of 79 items and a number of items concerning lot 6. The Building Contract referred to those items as the scope of works required to be undertaken by the respondent, and the price for such work was $674,427.00. The respondent commenced the building works and issued invoices for progress payments. 4The respondent ceased the building work on 17 November 2008. 5On 3 December 2008 the respondent issued a Notice of Suspension of works. The applicant submits that the Notice was issued wrongly and contends that the respondent breached and repudiated the Building Contract by leaving the building site on 17 November 2008 and ceasing the building work. 6The applicant appointed a second rectifying builder called Dankav Pty Ltd ("Dankav") to complete the building works for a sum of $1,525,983 plus GST. The applicant seeks damages measured by the cost of completing the works through Dankav less the value of the work the respondent did not perform under the Building Contract. The applicant says that the value of that allowance in favour of the respondent is $425,121.00 (in the applicants post hearing written submissions this figure was $403,864.00) which means that the claim against the respondent is in the order of $1,2000,000. However, the applicant has limited its claim to the limit of the Tribunal's jurisdiction which is $500,000. 7Alternatively, the applicant contends that if the contract was not terminated wrongfully by the respondent, the applicant is entitled to the cost of fixing the defective work of the respondent which the applicant assesses at $116,306.80 net of overheads and GST. The applicant also seeks recovery of the excess ($6,500.00) and the deposit ($33,721.00). 8In the applicants written submissions received after the hearing the damages claim was identified as being $211,989.00 for works carried out but not performed in accordance with the plans and specifications set out in the Building Contract without an approved variation and $99,000.00 for the cost of rectifying defects. 9The applicant also claims interest and costs.