M & M Building Pty Ltd v Keith [2017] NSWCATAP 88

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: M & M Building Pty Ltd v Keith [2017] NSWCATAP 88 Hearing dates: 23 August 2016, 27 September 2016 Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Appeal Panel Before: L P Robberds QC Senior Member R Perrignon Senior Member Decision: 1 The appeal is allowed in part in the sum of $69,882.78. 2 Otherwise the appeal is dismissed and the appellant is ordered to pay the respondents the sum of $352,077.91 in substitution for the order for the payment of $421,960.69 made by the Tribunal on 6 May 2016. 3 The question of costs is reserved. If either party seeks an order for costs then they should file and serve written submissions as follows: the respondents to file and serve their written submissions on or before 14 days after the publication of these reasons. The appellant to file and serve its written submissions within 14 days after receipt of the respondents' written submissions. 4 If submissions are filed and served, they should address the question whether pursuant to s50 (2) of the Civil and Administrative Tribunal Act the Appeal Panel should dispense with a hearing on the question of costs. Catchwords: Home building contract – requirements for termination – whether requirements applied to termination at common law – whether contract terminated – Home Building Act requirements for variations – whether required to be in writing and signed by the parties – whether denial of procedural fairness in allowing submissions concerning termination at common law – claim for damages for breaches of contract by builder – failure to give reasons for non-application of s48MA Home Building Act – builder not licensed – was builder entitled to extension of time – was contract validly suspended by builder – acquiescence by home owners in change of plans - estoppel Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd [2011] NSWSC 716 Kennedy v Collings Constructions Company Pty Ltd (1989) 7 BCL 25 Minion v Graystone Pty Ltd [1990] 1 Qld R 157 Stuart v Hishon [2013] NSWSC 766 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11 The Owners-Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Xu v Jinhong Design and Constructions Pty Ltd [2011] NSWCA 277 Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd (2005) 218 ALR1; [2005] FCAFC 49 Texts Cited: Contract Law in Australia 6th edition J.W, Carter Category: Principal judgment Parties: M & M Building Pty Ltd (Appellant) Emma Keith and Duncan Keith (Respondents) Representation: Counsel: A d'Arville (Respondents)