In Lee v Big Dipper Constructions Pty Ltd; Big Dipper Constructions Pty Ltd v Lee [2026] NSWDC 43, Weber SC DCJ dismissed an Owner's claim for breach of contract, and reduced his claim for defects, in circumstances where the Owner had "set up" the Builder's breach by denying him access to the site, and was therefore not entitled to take advantage of his own wrong.
Lee owns a property in Baulkham Hills. In July 2021 he entered into a lump sum contract for alterations and addition to the Property. The contract price was $540k. The contract required the works to be completed within 29 calendar weeks. There was a dispute about when the works commenced, but little turned on this. Lee alleged the works were not completed by the contractual completion date. He also claimed defects in the works. In February 2022 Lee purported to terminate the contract. In doing so he also informed BDC that if it or its contractors entered the site he would involve the policy. Solicitors then became involved and BDC was instructed to rectify defects. In August 2022, following a dispute resolution process, Lee again purported to terminate the contract.
His Honour considered which termination was lawful. While it was common ground that the contract had been terminated, his Honour found that Lee's purported termination, and notice barring BDC from site effectively stopped construction. This denial of BDC's access to the site was unequivocal and constituted a breach of the contract. His Honour described the subsequent letter from Lee's lawyers as "curious" in that it required an explanation as to why BDC had suspended the works, despite it knowing that BDC had been banned from site. Lee could not set up his own breach of contract be denying BDC access and using it as a basis to terminate. This would allow him to take advantage of his own wrong, and was contrary to the "prevention principle". Ultimately, his Honour found that the first purported termination evinced an intention to no longer be bound which constituted repudiatory conduct entitling BDC to terminate.
His Honour also considered Lee's defects claim. This was limited to two defects concerning substandard brickwork with inconsistent perpend thickness to face brick, and inconsistent gaps between the windowsill and frame. His Honour did not consider demolition of the wall as being "reasonable" or "necessary" and, applying Bellgrove v Eldridge, therefore declined to order damages on that basis.
Finally, his Honour upheld BDC's cross claim for unpaid amounts owed to it and therefore made a costs order in its favour because BDC had been "overwhelmingly successful in the Proceedings".