Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546

Supreme Court New South Wales

Medium Neutral Citation: Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546 Hearing dates: 10 to 13, 18 to 20 October 2017 Decision date: 17 November 2017 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: 1. Judgment in favour of the plaintiffs against the first defendant in the sum of $804,703.55.

2. Judgment in favour of the plaintiffs against the second defendant in the sum of $477,013.45.

3. Judgment in favour of the plaintiffs against the third defendant in the sum of $467,950.00. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff's impecuniosity must be taken into account in determining what loss is reasonably foreseeable CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants' breach Legislation Cited: Australian Consumer Law s 18 Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Home Building Act 1989 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Auburn Municipal Council v ARC Engineering Pty Ltd [1973] 1 NSWLR 513 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 Hampic v Adams [1999] NSWCA 455 Kavanagh v Blissett [2001] NSWCA 79 Lagden v O'Connor [2004] 1 AC 1067; [2003] UKHL 64 Redmond Family Holdings v GC Access Pty Ltd [2016] NSWSC 796 Roluke Pty Ltd & Anor v Lamaro Consultants Pty Ltd & Anor [2007] NSWSC 349 Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Category: Principal judgment Parties: Toni Elias (First Plaintiff) Saide Elias (Second Plaintiff) Alloha Formwork & Construction Pty Ltd (First Defendant) Antonios Boumelhem (Second Defendant) Monzer Farah (Third Defendant) Representation: Counsel: AM Pickles SC with M McMahon (Plaintiffs) J Phillips SC (First and Second Defendants) JA Steele with L Robb Vujcic (Third Defendant)