Ace Woollahra Pty Ltd v The Owners—Strata Plan 61424 & Anor [2010] NSWCA 101

Ace Woollahra Pty Ltd v The Owners—Strata Plan 61424 & Anor [2010] NSWCA 101

The Proprietor could not rely on s 18D of the Home Building Act 1989 to enforce statutory warranties directly against the Builder. PRC was not a party to the building contract with the Builder, and the insurance provisions in Part 6 did not create or enlarge an entitlement to the benefit of statutory warranties. On the structure of Part 2C, PRC could be a person entitled to the benefit of statutory warranties only if s 18B or s 18C so provided. Because that was not established, the Proprietor, although PRC's successor in title to common property, was not entitled under s 18D to enforce the statutory warranty against the Builder.

Jurisdiction
Australia
Judgment Date
17 May 2010
Procedural Posture
Building and Construction Appeal Concerning Statutory Warranties Under the Home Building Act 1989 / Application for Leave to Appeal and Appeal From a Supreme Court Determination of a Separate Preliminary Question
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['home Building Act 1989 Part 2 C Statutory Warranties' 'successor in Title Under S 18 D' 'residential Building Work' 'home Warranty Insurance' 'separate Questions Under Uniform Civil Procedure Rules 2005 R 28.2']
['building and Construction' 'statutory Interpretation' 'insurance'] ['home Building Act 1989 Part 2 C Statutory Warranties' 'successor in Title Under S 18 D' 'residential Building Work' 'home Warranty Insurance' 'separate Questions Under Uniform Civil Procedure Rules 2005 R 28.2']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Building and Construction Appeal Concerning Statutory Warranties Under the Home Building Act 1989 / Application for Leave to Appeal and Appeal From a Supreme Court Determination of a Separate Preliminary Question

Legal Issues

  1. 1 ['Whether the owners corporation was entitled under s 18D of the Home Building Act 1989 to the benefit of statutory warranties enforceable against the builder.' 'Whether a registered proprietor on whose behalf residential building work was said to have been done, but who was not party to the building contract, was a person entitled to the benefit of statutory warranties for the purposes of s 18D.' 'Whether the insurance provisions in Part 6 of the Home Building Act 1989, including ss 92, 96, 99 and 101, could enlarge the class of persons entitled to enforce statutory warranties under Part 2C.']

Ratio Decidendi

The Proprietor could not rely on s 18D of the Home Building Act 1989 to enforce statutory warranties directly against the Builder. PRC was not a party to the building contract with the Builder, and the insurance provisions in Part 6 did not create or enlarge an entitlement to the benefit of statutory warranties. On the structure of Part 2C, PRC could be a person entitled to the benefit of statutory warranties only if s 18B or s 18C so provided. Because that was not established, the Proprietor, although PRC's successor in title to common property, was not entitled under s 18D to enforce the statutory warranty against the Builder.

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Set aside the answer to Question 1 of the agreed Statement of Preliminary Issues Facts and Premises given by Einstein J on 29 July 2009.' 'In lieu thereof, Question 1 is answered: "The first respondent (\'Proprietor\') is not entitled under s 18D of the Home Building...