Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67

Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67

The findings of 'significant water penetration' and 'major defect' in the balcony and cladding were not supported by sufficient evidence as required under s 18E(4) of the Home Building Act 1989. Therefore, the appeal by the Former Owner (Ashton) is allowed, the order against Ashton set aside. The Owner's (Stevenson) appeals on limitation period, roofing/guttering/plumbing defects, windows, and quantum fail due to lack of necessary evidentiary support or legal error. The necessity of proof of 'major defect' consequences is emphasised and not to be satisfied by speculation.

Jurisdiction
Australia
Judgment Date
26 March 2019
Procedural Posture
Internal Appeals (ap 18/31090 and AP 18/32837) From Consumer and Commercial Division (home Building Application) / Appeal Panel Decision
Outcome
Appeal of Ashton (AP 18/31090) allowed on grounds 1-4; Order against Ashton set aside; Stevenson (AP 18/32837) appeals dismissed.
Legal Topics
['date of Completion of Residential Building Work' 'major Defect Definition' 'limitation Periods' 'statutory Warranties' 'building Claims Jurisdiction']
['home Building Law' 'administrative Law' 'consumer Law'] ['date of Completion of Residential Building Work' 'major Defect Definition' 'limitation Periods' 'statutory Warranties' 'building Claims Jurisdiction']

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Procedural Posture

Internal Appeals (ap 18/31090 and AP 18/32837) From Consumer and Commercial Division (home Building Application) / Appeal Panel Decision

Legal Issues

  1. 1 ['What is the correct date of completion of residential building work under s 3B of the Home Building Act 1989?' "What constitutes a 'major defect' under s 18E(4) of the Home Building Act 1989?" "Were findings of 'major defect' in balcony and cladding supported by evidence?" "Did certain roofing, guttering, and plumbing defects qualify as 'major defect'?" 'Was assessment of defects and quantum by Tribunal lawful and fair?']

Ratio Decidendi

The findings of 'significant water penetration' and 'major defect' in the balcony and cladding were not supported by sufficient evidence as required under s 18E(4) of the Home Building Act 1989. Therefore, the appeal by the Former Owner (Ashton) is allowed, the order against Ashton set aside. The Owner's (Stevenson) appeals on limitation period, roofing/guttering/plumbing defects, windows, and quantum fail due to lack of necessary evidentiary support or legal error. The necessity of proof of 'major defect' consequences is emphasised and not to be satisfied by speculation.

Court Disposition

Appeal of Ashton (AP 18/31090) allowed on grounds 1-4; Order against Ashton set aside; Stevenson (AP 18/32837) appeals dismissed.

Orders

  • ['In AP 18/31090: Appeal on grounds 1, 2, 3, and 4 allowed; Order 1 in the Decision is set aside; Respondent to immediately pay to the Appellant any amount paid under the Order.' 'In AP 18/32837: Appeal on grounds 1, 2, 3, 4, 5, 6, 7, 9, 10, and 12 are dismissed.' 'Any application for costs to be filed and served...