Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Visual v Armitstead (No 2) [2019] NSWCA 280. We will talk about a dispute between property owners and a builder, as well as the conditions associated with termination of building contracts.

Two property owners entered into a contract with a builder to construct two duplex buildings. The builder moved slower than the owners hoped. They ended up terminating the contract because the builder didn’t complete the work, rectify defects, or get a construction certificate in time. Nor did the builder obtain a construction certificate at all: [13] The builder appealed, saying the contract required the owners to give 10 days’ notice before terminating, and they failed to do that. The builder went down on appeal. The Court found that there was a requirement to give 10 days’ notice before termination but – crucially – that only applied if the default was capable of remedy within that period: [31] The Court went on to find that even if termination was not valid, the owners should get a damages payment because of the builder’s failure to get a CC before construction or at all. The entitlement to damages was not dependent on the termination being improper: [5]