Avad Construction Group Pty Ltd v Carl La Rocca;; Carl La Rocca v Avad Construction Group Pty Ltd. [2015] NSWCATCD 51

Avad Construction Group Pty Ltd v Carl La Rocca;; Carl La Rocca v Avad Construction Group Pty Ltd. [2015] NSWCATCD 51

The Tribunal has jurisdiction to determine the Owner's claims as 'building claims' under the Home Building Act 1989, as the claims were sufficiently particularised through expert evidence and Scott Schedule and the Builder was not prejudiced. Most items of defect were determined on the evidence, with the Owner successful only on items where defects were proved and rectification was reasonable. The Builder's counterclaim was established and offset against the Owner's proven entitlement. Claims for 'inconvenience' and certain other items were dismissed for lack of evidence or jurisdiction.

Jurisdiction
Australia
Judgment Date
17 April 2015
Procedural Posture
Consumer and Commercial Dispute / Final Hearing and Determination
Outcome
Application and cross-application partly allowed
Legal Topics
['defective Workmanship' 'building Claims Jurisdiction' 'rectification Costs' 'contract Variations' 'statutory Warranties']
['building and Construction' 'consumer Law'] ['defective Workmanship' 'building Claims Jurisdiction' 'rectification Costs' 'contract Variations' 'statutory Warranties']

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Procedural Posture

Consumer and Commercial Dispute / Final Hearing and Determination

Legal Issues

  1. 1 ["Whether the claims made by the Owner constitute 'building claims' under the Home Building Act 1989" 'Whether defects alleged by the Owner were established on the evidence' 'Whether rectification or compensation was appropriate for defects' 'Whether the Builder was entitled to the outstanding contract sum' 'Appropriate calculation of the rectification costs according to evidence and legal principle']

Ratio Decidendi

The Tribunal has jurisdiction to determine the Owner's claims as 'building claims' under the Home Building Act 1989, as the claims were sufficiently particularised through expert evidence and Scott Schedule and the Builder was not prejudiced. Most items of defect were determined on the evidence, with the Owner successful only on items where defects were proved and rectification was reasonable. The Builder's counterclaim was established and offset against the Owner's proven entitlement. Claims for 'inconvenience' and certain other items were dismissed for lack of evidence or jurisdiction.

Court Disposition

Application and cross-application partly allowed

Orders

  • ['In matter number HB 14/21880, Avad Construction Group Pty Ltd is to pay Carl La Rocca the sum of $17,641.80 less the sum of $6,329.00 owing to Avad Construction Pty Ltd in HB 14/15525, being a net amount of $11,312.80 within 60 days of the date of these orders.' 'In matter number HB 14/15525, the amount owing to...