A temporary injury or incapacity may be sufficient to frustrate a building contract where the contract requires personal performance or supervision by the builder and the incapacity is of such duration and uncertainty as to render performance radically different from that promised. The statutory warranties under s 18B of the Home Building Act 1989 (NSW) do not survive frustration of the building contract. The Home Building Act insurance provisions (s 99) do not cover non-completion due to supervening incapacity of the builder (as distinct from death, disappearance or insolvency), which the Court identified as an anomalous omission.
The full text is available to signed-in members, including the 23 later cases that cite this judgment.