Darren Ryan SACKS v Bouwen Projects Pty Ltd (previously known as Indoor and Outdoor Constructions Pty Ltd) [2025] NSWDC 539 — Construction & Contract — Barrister AI
Darren Ryan SACKS v Bouwen Projects Pty Ltd (previously known as Indoor and Outdoor Constructions Pty Ltd)
CONTRACTS — construction — remedies — damages — mitigation of loss — whether the Plaintiffs refused the Defendant access to the Property to carry out rectification works — whether the Plaintiffs’ conduct was unreasonable in the circumstances such that some or all of the claimed loss should be disregarded
BUILDING AND CONSTRUCTION — contract — defects — rectification of defective works
EVIDENCE — parol evidence rule
Quick Take
1Where a building contract contains an entire agreement clause and incorporates specifications requiring a particular product (here, Wolfin waterproofing), pre-contractual communications cannot be relied upon to establish a variation or approval of an alternative product; the parol evidence rule and the entire agreement clause exclude such evidence, and any 'approval' clause within the specification contemplates post-contractual approval only.
2Express contractual warranties that replicate the statutory warranties implied by the Home Building Act 1989 (NSW) are independent contractual terms; breach of those express warranties is not subject to the limitation periods in the HBA applicable to statutory warranties, so claims for minor defects may proceed beyond the two-year statutory period.
3A builder asserting failure to mitigate by reason of the owner's refusal of access to rectify defects bears both the legal and evidential onus of proving that the owner acted unreasonably and that identifiable loss resulted from that unreasonable conduct; where the owner conditioned access on receiving an agreed scope of works and information about proposed materials — particularly after the builder admitted using products not fit for purpose — those conditions were not unreasonable, and the mitigation defence failed on the facts.
