Form or content?

In the recent decision of Builtex Constructions Pty Ltd He [2019] NSWCATAP 95, NSW Civil and Administrative Tribunal Appeal Panel dismissed the appellant Builder’s submissions that the respondent Owner repudiated the contract because the Owner failed to provide notice of dispute, hold a dispute resolution meeting, and give a proper notice of default to terminate the contract.


In the Tribunal below, orders had been made awarding the Owner more than $100,000 for breach of statutory warranty and dismissing the builder’s quantum meruit claim. The relevant contract was a Master Builders Association residential building contract.

The contract before the Appeal Panel was a Master Builders Association residential building contract. The relevant terms are summarised below:

  • clause 26 provided that the party saying that there is a dispute must issue a dispute notice to the other party. Within 10 business days after giving such notice, the parties must confer at least once to attempt to resolve the dispute. In the absence of a meeting, the contract cannot be terminated unless the other party refused to attend the meeting
  • clause 27 provided that the notice must accurately set out the matters giving rise to the issuing of the notice and attach supporting documents
  • clause 28 provided, among other things, that the Owner may only terminate the contract if, in the case of a default capable of remedy, the default continues for 25 days after serving a notice of default.

Grounds of appeal and findings

The Builder relied on, inter alia, 3 grounds of appeal which each challenged that the contract was lawfully terminated, concerning:

  1. clause 27 and the role of the architect – the Tribunal below had found that the architect undertook a supervisory role on behalf of the Owner, and communicated with the builder as the Owner’s agent. The contract did not contemplate this, only naming the architect as the nominating officer for the purpose of the mediation clause. The Appeal Panel found that whilst the contract did not give the architect an official role beyond that, it did not preclude him acting as the Owner’s agent. The Appeal Panel also dismissed an argument that all allegations of default in the clause 27 notice must be established or capable of being established, noting that this would be inconsistent with common law principles
  2. validity of notices and meetings – the Tribunal below had accepted communications from and meetings with the architect as valid for the purpose of clause 26 and 27, even where they were not expressed to be pursuant to or in furtherance of the relevant clauses of the contract. The Appeal Panel agreed that at least one of the notices and meetings met the requirements and in particular found that the meeting which took place with the NSW Fair Trading inspector was not precluded (by its genesis being a complaint to NSW Fair Trading) from being a meeting for the purpose of clause 26 of the contract. An issue that a meeting had taken place more than 10 days after the notice was issued was also given short shrift, the Tribunal noting this could give rise to avoidance/delay so as to manufacture non-compliance and that there was no statement in the contract that a meeting held after the 10 day period would be invalid
  3. validity of notice of default – this was similar to an aspect of ground 1 and failed on similar grounds, that is, unjustified allegations in the default notice did not of themselves invalidate the notice when it was valid in an number of other respects.

The approach taken by the Tribunal was to look at the substance and effect of the communications, rather than merely how they were badged (or not badged). The cumulative effect is of course easier to see in hindsight. Parties in doubt can seek clarification from their counterparty as to whether communications are intended to be notices for the purpose of the contract, to seek to manage that risk.

Author: Christine Jones

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Builtex Constructions Pty Ltd v He [2019] NSWCATAP 95(1) Leave to appeal is refused. (2) The appeal is dismissed. APPEAL – construction of building contract – whether notice of dispute given in accordance with the contract – whether notice of default given in accordance with the contract – whether contract validly terminated – exercise of costs discretion – leave to appeal Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989

Apthorpe v QBE Insurance (Australia) Limited & Ors [2019] NSWDC 135TORTS – workplace injury on a domestic building site – plaintiff roofing labourer fell to ground from roof height after stepping on unsecured bridging planks between roof and a scaffolding platform – determination of liability of builder, scaffolder, fascia and guttering contractor and plaintiff’s employer the tiling contractor – differing assessment schemes for employer’s liability and occupier’s liability; DAMAGES – assessment of claimed heads of damage – Workers Compensation Act 1987 and Civil Liability Act 2002

The Sydney Building Company Limited v Sinac (No 2) [2019] NSWCATAP 89 COSTS: no question of principle

Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41 MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council [2010] NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour

Gill v Summit Building Design and Construction Pty Ltd [2019] NSWCATCD 5BREACH OF CONTRACT - repudiation– assessment of damages – work order – weight of evidence

Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79HOME BUILDING – Whether the Tribunal erred in failing to find that an agreed damages clause is a penalty clause – Whether the appellant should be granted leave to raise a ground on appeal which was not argued before the Tribunal –– Whether the Tribunal should have considered the appellant’s claim under the Australian Consumer Law instead of the Contracts Review Act

Webster v Tom [2019] NSWCATAP 75 |APPEALS – home building claim against builder – allegation of home owners as to a misclassification of building site by an engineer not joined as a party by the owners – terms of builder’s engagement – agreed scope of works for builder - no error of law – competing expert evidence on ongoing cracking and the construction of piers - whether the Tribunal’s findings were not fair and equitable or against the weight of evidence – whether new evidence was reasonably available - no other grounds for leave to appeal – appeal dismissed

Tom v Jenkins [2019] NSWCATAP 74APPEALS – builder’s claim against engineer for indemnity in respect of builder’s liability to home owners for defective residential building work – builder’s claim based on allegations of negligence and misleading conduct - extension of time required to appeal – lack of procedural fairness – statutory interpretation of s 48K of the Home Building Act – lack of jurisdiction for the Tribunal to determine the builder’s claim – appeal dismissed.