Economos v P & T Athos Constructions Pty Ltd [2016] NSWCATCD 89

Economos v P & T Athos Constructions Pty Ltd [2016] NSWCATCD 89

The Tribunal found that the applicants proved some, but not all, alleged defects. The respondent breached clause 38.1(a) of the contract and the incorporated statutory warranties in relation to failed waterproofing membranes, the stormwater pipe penetration, box gutter rivet spacing, unlevel cladding boards, unfinished plasterboard patching and defective finish to timber privacy screens. Other items were dismissed because they were not proved, were not shown to be within the respondent's contract, or related to damage already repaired by the insurer. The reasonable rectification cost for the proved defects was $21,126.00, with a justified 30% builder's mark up and 10% GST, producing a...

Jurisdiction
Australia
Judgment Date
15 November 2016
Procedural Posture
Building Claim Under the Home Building Act 1989 for Defective Residential Building Work / Principal Judgment After Hearing in the Consumer and Commercial Division
Outcome
Application allowed in part; the respondent builder was ordered to pay the applicants $30,201.18 immediately, with procedural directions for any costs application.
Legal Topics
['defective Residential Building Work' 'statutory Warranties Under Section 18 B of the Home Building Act 1989' 'rectification Costs' 'expert Evidence' 'burden of Proof' 'costs Applications']
['home Building' 'contract Law' 'consumer and Commercial Law' 'civil Procedure'] ['defective Residential Building Work' 'statutory Warranties Under Section 18 B of the Home Building Act 1989' 'rectification Costs' 'expert Evidence' 'burden of Proof' 'costs Applications']

Case Brief

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Procedural Posture

Building Claim Under the Home Building Act 1989 for Defective Residential Building Work / Principal Judgment After Hearing in the Consumer and Commercial Division

Legal Issues

  1. 1 ["Whether the respondent builder carried out defective work at the applicants' residence in breach of the contract and statutory warranties." "Whether particular alleged defects were within the respondent builder's contractual scope of work." "Whether water damage to the garage ceiling and joinery had already been rectified by the applicants' insurer following the April 2015 storms." 'What amount was reasonably required for rectification of the defects proved by the applicants.' "Whether a 30% builder's mark up and GST should be allowed on rectification costs."]

Ratio Decidendi

The Tribunal found that the applicants proved some, but not all, alleged defects. The respondent breached clause 38.1(a) of the contract and the incorporated statutory warranties in relation to failed waterproofing membranes, the stormwater pipe penetration, box gutter rivet spacing, unlevel cladding boards, unfinished plasterboard patching and defective finish to timber privacy screens. Other items were dismissed because they were not proved, were not shown to be within the respondent's contract, or related to damage already repaired by the insurer. The reasonable rectification cost for the proved defects was $21,126.00, with a justified 30% builder's mark up and 10% GST, producing a...

Court Disposition

Application allowed in part; the respondent builder was ordered to pay the applicants $30,201.18 immediately, with procedural directions for any costs application.

Orders

  • ['P & T Athos constructions Pty Ltd must pay Angelo Economos and Maria Economos the sum of $30,201.18 immediately' 'The following orders will apply in the event that either party wishes to make an application for costs.' 'Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act 2013...