Timothy Heath v Steele Associates Pty Ltd [2015] NSWCATCD 8

Timothy Heath v Steele Associates Pty Ltd [2015] NSWCATCD 8

The Tribunal preferred the Hyder and Jacobs expert evidence to the builder's evidence and found that the pool sealant work breached the statutory warranties because it was not performed in a proper and workmanlike manner and in accordance with the plans and specifications. It was reasonable for the owner to adopt the more costly rectification method involving removal and resealing of the glass, and the proved rectification, admitted items and expert costs totalled $128,860.00. The builder was nevertheless entitled to the outstanding debt plus interest under the deed of novation, assessed at $40,350.00, which was set off against the owner's recovery, leaving $88,510.00 payable to the...

Jurisdiction
Australia
Judgment Date
13 January 2015
Procedural Posture
Home Building Defects Claim for Breach of Statutory Warranties and Builder's Debt Recovery Claim / Principal Judgment After Hearing
Outcome
Steele Associates Pty Ltd was ordered to pay Timothy Heath $88,510.00, and the builder's debt recovery proceeding HB 13/51291 was dismissed.
Legal Topics
['statutory Warranties' 'residential Building Defects' 'rectification Costs' 'debt Recovery' 'deed of Novation' 'set Off' 'costs']
['home Building' 'consumer and Commercial' 'contract'] ['statutory Warranties' 'residential Building Defects' 'rectification Costs' 'debt Recovery' 'deed of Novation' 'set Off' 'costs']

Case Brief

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Procedural Posture

Home Building Defects Claim for Breach of Statutory Warranties and Builder's Debt Recovery Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the builder breached the statutory warranties under section 18B of the Home Building Act 1989 in relation to defective pool sealant and related items.' "Whether the owner's chosen rectification method, involving removal and resealing of the pool glass, was reasonable and recoverable." 'Whether the owner proved liability and quantum for the other alleged defects.' "Whether the deed of novation affected the builder's entitlement to recover the unpaid debt." "Whether the builder's contractual and mitigation arguments precluded or reduced the owner's statutory warranty claim." 'Whether general damages, architectural fees, solicitor costs before proceedings, mediation costs, and consultant costs were recoverable.']

Ratio Decidendi

The Tribunal preferred the Hyder and Jacobs expert evidence to the builder's evidence and found that the pool sealant work breached the statutory warranties because it was not performed in a proper and workmanlike manner and in accordance with the plans and specifications. It was reasonable for the owner to adopt the more costly rectification method involving removal and resealing of the glass, and the proved rectification, admitted items and expert costs totalled $128,860.00. The builder was nevertheless entitled to the outstanding debt plus interest under the deed of novation, assessed at $40,350.00, which was set off against the owner's recovery, leaving $88,510.00 payable to the...

Court Disposition

Steele Associates Pty Ltd was ordered to pay Timothy Heath $88,510.00, and the builder's debt recovery proceeding HB 13/51291 was dismissed.

Orders

  • ['In HB 13/5555 Steele Associates Pty Ltd must pay $88,510.00 to Timothy Heath on or before 7 March 2015.' 'HB 13/51291 is dismissed.' 'The homeowner shall file and serve submissions on costs by no later than 21 January 2015.' 'The builder shall file submissions on costs by 4 February 2014.' 'Any submissions on...