Donald Gregory Everson and Jo Anne Everson v Robert James Mackley [2014] NSWCATCD 252

Donald Gregory Everson and Jo Anne Everson v Robert James Mackley [2014] NSWCATCD 252

The Tribunal found that the homeowners had not proved they contracted for an entirely new kitchen or bathroom and had accepted the second-hand or existing fittings subject to defects being fixed, so replacement damages would involve potential betterment. However, the builder was required by clause 46 and the Home Building Act 1989 warranties to perform the renovation work in a proper and workmanlike manner and had failed to do so in many respects. The proven and conceded defects were quantified at $7,000, with further allowances of $2,000 for kitchen flooring and $1,000 for laundry flooring, producing rectification and completion damages of $10,000.

Jurisdiction
Australia
Judgment Date
16 October 2014
Procedural Posture
Home Building Dispute Concerning Allegedly Defective and Incomplete Residential Renovation Work / Principal Judgment After Hearing
Outcome
Application allowed in part; respondent builder ordered to pay damages to the applicant homeowners.
Legal Topics
['residential Building Work' 'statutory Warranties' 'defective and Incomplete Work' 'rectification Costs' 'proper and Workmanlike Manner']
['home Building' 'consumer and Commercial' 'contract'] ['residential Building Work' 'statutory Warranties' 'defective and Incomplete Work' 'rectification Costs' 'proper and Workmanlike Manner']

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Procedural Posture

Home Building Dispute Concerning Allegedly Defective and Incomplete Residential Renovation Work / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether or to what extent the works performed by the builder were defective or incomplete at the date of completion of the purchase contract.' 'Whether the claimed costs of rectification or completion were reasonable.' 'Whether the homeowners were entitled to damages on the basis of full replacement of the kitchen, bathroom and laundry, or only repair and completion of defects.']

Ratio Decidendi

The Tribunal found that the homeowners had not proved they contracted for an entirely new kitchen or bathroom and had accepted the second-hand or existing fittings subject to defects being fixed, so replacement damages would involve potential betterment. However, the builder was required by clause 46 and the Home Building Act 1989 warranties to perform the renovation work in a proper and workmanlike manner and had failed to do so in many respects. The proven and conceded defects were quantified at $7,000, with further allowances of $2,000 for kitchen flooring and $1,000 for laundry flooring, producing rectification and completion damages of $10,000.

Court Disposition

Application allowed in part; respondent builder ordered to pay damages to the applicant homeowners.

Orders

  • ['That the Respondent builder pay to the applicant homeowners the sum of $10,000.00 within 28 days of the date of this order.']