Onslow v Cullen [2022] NSWSC 1257

Onslow v Cullen [2022] NSWSC 1257

Clause 39 replicated the statutory warranties required by s 18B of the Home Building Act 1989 (NSW) and, because it was prefaced by the words "To the extent required by the Home Building Act", those warranties were subject to the limitation period in s 18E. The owners' claims for non-major defects in items 1 and 3 were therefore statute-barred, although the claim for incomplete works was not affected. The Local Court also denied procedural fairness by disregarding the owners' case-summary concession that the builder was entitled to a $1,321 credit, on which the builder relied in conducting the hearing. The Local Court's reasons were inadequate because they did not address the builder's...

Jurisdiction
Australia
Judgment Date
19 September 2022
Procedural Posture
Appeal From Local Court to Supreme Court of New South Wales, Common Law Division / Appeal Against Orders Made by Hosking LCM on 19 November 2021; Summons Filed 16 December 2021 and Amended 16 March 2022
Outcome
Appeal allowed; Local Court orders 1, 2 and 3 set aside; judgment entered for the owners in the reduced sum of $11,985.22 plus pre-judgment interest to be calculated.
Legal Topics
['home Building Act 1989 (nsw) Statutory Warranties' 'limitation Periods for Minor Defects' 'construction of Residential Building Contract' 'procedural Fairness' 'adequacy of Reasons' 'appeal From Local Court on Questions of Law']
['building and Construction' 'contract Law' 'civil Procedure' 'appeals'] ['home Building Act 1989 (nsw) Statutory Warranties' 'limitation Periods for Minor Defects' 'construction of Residential Building Contract' 'procedural Fairness' 'adequacy of Reasons' 'appeal From Local Court on Questions of Law']

Case Brief

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Procedural Posture

Appeal From Local Court to Supreme Court of New South Wales, Common Law Division / Appeal Against Orders Made by Hosking LCM on 19 November 2021; Summons Filed 16 December 2021 and Amended 16 March 2022

Legal Issues

  1. 1 ['Whether cl 39 of the residential building contract, which replicated statutory warranties in s 18B of the Home Building Act 1989 (NSW), incorporated the limitation period in s 18E for non-major defects.' "Whether the Local Court denied procedural fairness by failing to give effect to the owners' concession in their case summary that the builder was entitled to a credit of $1,321." 'Whether the Local Court failed to give adequate reasons on the construction of cl 39 and the rejection of the $1,321 credit.' 'Whether the appeal grounds involved questions of law so that leave to appeal was not required.']

Ratio Decidendi

Clause 39 replicated the statutory warranties required by s 18B of the Home Building Act 1989 (NSW) and, because it was prefaced by the words "To the extent required by the Home Building Act", those warranties were subject to the limitation period in s 18E. The owners' claims for non-major defects in items 1 and 3 were therefore statute-barred, although the claim for incomplete works was not affected. The Local Court also denied procedural fairness by disregarding the owners' case-summary concession that the builder was entitled to a $1,321 credit, on which the builder relied in conducting the hearing. The Local Court's reasons were inadequate because they did not address the builder's...

Court Disposition

Appeal allowed; Local Court orders 1, 2 and 3 set aside; judgment entered for the owners in the reduced sum of $11,985.22 plus pre-judgment interest to be calculated.

Orders

  • ['Allow the appeal.' 'Set aside orders 1, 2 and 3 made by Hosking LCM on 19 November 2021.' 'In lieu of the orders referred to in (2) above, order judgment for the plaintiffs (in the Court below, the defendants in this Court) in the sum of $11,985.22 together with pre-judgment interest pursuant to s 100 of the Civil...