Wood v J & G Constructions Pty Ltd [2021] NSWCATCD 157

The respondents breached statutory warranties under section 18B of the Home Building Act 1989 (NSW) by defective installation and incomplete rectification of the rangehood, cabinetry, sink, splashback and related works. The alleged instruction-against-advice defence failed because the Tribunal was not satisfied any advice was given and, in any event, no advice was given in writing as required by section 18F(1)(a). The access defence failed because the evidence did not establish that the homeowner obstructed or refused reasonable access. Section 48MA did not justify requiring rectification by the respondents because the defects had already been rectified after the respondents failed to act...

Jurisdiction: Australia
Judgment Date: 18 January 2021
Procedural Posture: Home Building Claim for Compensation for Alleged Defective Residential Building Work and Costs / Final Hearing and Redetermination on the Merits After an Earlier Decision Was Set Aside
Outcome: Application for compensation allowed; costs application dismissed.
Legal Topics: ['home Building Act 1989 (nsw) Statutory Warranties' 'defective Residential Building Work' 'due Care and Skill' 'compliance With Law' 'fitness for Occupation as a Dwelling' 'access for Rectification of Defects' 'preferred Outcome of Rectification Under Section 48 Ma' 'acceptance of Home Building Claims Without Prior Investigation' 'costs in NCAT Proceedings']

['building and Construction' 'consumer Law' 'civil Procedure' 'costs'] ['home Building Act 1989 (nsw) Statutory Warranties' 'defective Residential Building Work' 'due Care and Skill' 'compliance With Law' 'fitness for Occupation as a Dwelling' 'access for Rectification of Defects' 'preferred Outcome of Rectification Under Section 48 Ma' 'acceptance of Home Building Claims Without Prior Investigation' 'costs in NCAT Proceedings']

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Procedural Posture

Home Building Claim for Compensation for Alleged Defective Residential Building Work and Costs / Final Hearing and Redetermination on the Merits After an Earlier Decision Was Set Aside

Legal Issues

1 ['Whether the builder and developer breached statutory warranties under section 18B of the Home Building Act 1989 (NSW) in relation to kitchen and other defects in the property.' "Whether the respondents could rely on a defence that work was carried out according to the homeowner's instructions contrary to advice." 'Whether the homeowner obstructed or unreasonably refused access for rectification of defects.' 'Whether the preferred outcome of rectification by the responsible party under section 48MA of the Home Building Act 1989 (NSW) should be applied.' 'Whether the homeowner was entitled to compensation for rectification costs and in what amount.' 'Whether special circumstances justified an order for costs under section 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the application should have been rejected under section 48J of the Home Building Act 1989 (NSW) because there had been no prior investigation.']

Ratio Decidendi

Court Disposition

Application for compensation allowed; costs application dismissed.

Orders

['J & G Constructions Pty Ltd and Suecha Pty Ltd as trustee for Suecha Family Trust are to pay Christina Jane Wood the sum of $14,238.50 immediately.' 'No order as to costs']