Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Hearing dates: 23 November 2016 Decision date: 07 February 2017 Before: McColl JA at [1]; Basten JA at [2]; Simpson JA at [106] Decision: (1) Set aside orders 1 and 2 made by the District Court on 18 December 2015 on the applicant's appeal.

(2) In place thereof, make the following orders:

(a) allow the appeal and vary the orders made by the Consumer, Trader and Tenancy Tribunal on 17 May 2013 in the following respects: (i) in order 1, vary the amount the respondent homeowners are liable to pay to the applicant builder to $50,386.40, in lieu of $38,171.40; (ii) consequentially, vary order 3 to an order that the applicant builder pay to the respondent homeowners the sum of $104,365.60.

(b) no variation of the costs order in the District Court.

(3) Order that the applicant pay 85% of the respondents' costs in this Court. Catchwords: APPEAL AND REVIEW – judicial review – supervisory jurisdiction – whether relief limited to that available under prerogative writs – whether court can make order replacing determination of court below if only result legally available in accordance with reasons of court

CONTRACTS – construction and interpretation of contracts – purposive interpretation – whether terms imposing procedural requirements and time limits for notices of breach and termination were mandatory – effect of non-compliance

JUDGMENTS – recoverability of interest – award of interest on amount payable for breach of contract – power of tribunal to order pre-determination interest