Huxley Homes Pty Ltd v Alexander Augustyn and Rebecca Augustyn; Alexander Augustyn and Rebecca Augustyn v Huxley Homes Pty Ltd [2015] NSWCATCD 17

Huxley Homes Pty Ltd v Alexander Augustyn and Rebecca Augustyn; Alexander Augustyn and Rebecca Augustyn v Huxley Homes Pty Ltd [2015] NSWCATCD 17

The builder failed to cover the particleboard flooring for four and a half months, breaching AS 1860.2 and thereby the warranties in Home Building Act 1989 (NSW) s 18B(a) and s 18B(c). However, the homeowners did not prove that those breaches caused mould levels higher than normal, any specific health risk, or that the dwelling was not reasonably fit for occupation as a dwelling. The builder was therefore not liable for mould remediation or supervision costs, and only the agreed defective-work amount less the agreed set-off was payable.

Jurisdiction
Australia
Judgment Date
03 February 2015
Procedural Posture
Residential Building Work Dispute in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing of Builder's Application and Homeowners' Cross Application
Outcome
Huxley Homes Pty Ltd was ordered to pay Alexander Augustyn and Rebecca Augustyn jointly $1,929.92 immediately; the applications were otherwise dismissed, with directions for costs submissions if costs were not agreed.
Legal Topics
['residential Building Work' 'statutory Warranties' 'defective Work' 'mould Contamination' 'reasonably Fit for Occupation as a Dwelling' 'australian Standard as 1860.2' 'set Off']
['home Building' 'consumer and Commercial' 'contract' 'building and Construction'] ['residential Building Work' 'statutory Warranties' 'defective Work' 'mould Contamination' 'reasonably Fit for Occupation as a Dwelling' 'australian Standard as 1860.2' 'set Off']

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Procedural Posture

Residential Building Work Dispute in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing of Builder's Application and Homeowners' Cross Application

Legal Issues

  1. 1 ['Whether the builder breached statutory warranties under Home Building Act 1989 (NSW) s 18B by leaving particleboard flooring and timber framing exposed to weather for four and a half months.' 'Whether mould in the flooring and timber framing rendered the dwelling not reasonably fit for occupation as a dwelling.' 'Whether the builder was liable for the agreed mould remediation cost and the claimed supervision cost.' 'What amount was payable after setting off agreed sums owed by the parties.']

Ratio Decidendi

The builder failed to cover the particleboard flooring for four and a half months, breaching AS 1860.2 and thereby the warranties in Home Building Act 1989 (NSW) s 18B(a) and s 18B(c). However, the homeowners did not prove that those breaches caused mould levels higher than normal, any specific health risk, or that the dwelling was not reasonably fit for occupation as a dwelling. The builder was therefore not liable for mould remediation or supervision costs, and only the agreed defective-work amount less the agreed set-off was payable.

Court Disposition

Huxley Homes Pty Ltd was ordered to pay Alexander Augustyn and Rebecca Augustyn jointly $1,929.92 immediately; the applications were otherwise dismissed, with directions for costs submissions if costs were not agreed.

Orders

  • ['Huxley Homes Pty. Ltd. shall pay Alexander Augustyn and Rebecca Augustyn, jointly, the sum of $1,929.92 immediately.' 'The applications are otherwise dismissed.' 'If the parties are unable to agree on the issue of costs, leave is granted for the parties to file and serve short written submissions on that issue...