Wesiak v D&R Constructions (Aust) Pty Ltd

[2016] NSWCA 353

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeal from tribunal
3. › Appeal on question of law only
4. › Whether finding of repudiation was reasonably open on the whole of the evidence
5. › Whether error of law
6. › Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)
1. Contract
2. › Termination
3. › Repudiation
4. › Renunciation
5. › Whether correspondence evinced intention to no longer be bound by contract
6. › Whether conduct must be assessed in light of all relevant factual circumstances
7. › Whether wrongful suspension of work by builder constituted repudiation
1. Contract
2. › Termination
3. › Repudiation
4. › Effect of breach on right to accept repudiation
5. › Whether party in breach may accept other party's repudiation
6. › Whether first party's breach provoked other party's repudiatory conduct
1. Contract
2. › Construction and interpretation
3. › Building contracts
4. › Essential terms
5. › Whether builder's obligation to execute and complete works is an essential term
6. › Whether contractual termination clause qualifies characterisation of term as essential

Quick Take

A finding of repudiation must be assessed against all relevant factual circumstances, including the conduct of the party alleging repudiation. Where a builder wrongfully suspends work and insists on contractual variations as a condition of resuming performance, correspondence from the owners foreshadowing termination but inviting continued negotiations cannot constitute repudiation. A party in breach may accept the other party's repudiation unless the first party's own breach provoked the repudiatory conduct. The builder's obligation to execute and complete works under a building contract is an essential term, breach of which entitles the other party to terminate.