Porthaze Pty Limited v Friend [2016] NSWCATCD 31

Porthaze Pty Limited v Friend [2016] NSWCATCD 31

The Tribunal found that it had jurisdiction and that the contractor was entitled to the admitted unpaid balance of $5,819.10. The owners proved some, but not all, alleged defects and breaches of section 18B of the Home Building Act 1989. Although rectification by the responsible party is the preferred outcome, the prior difficulties between the parties and the contractor's unwillingness to return made damages more appropriate than a work order. The owners did not prove that removal and replacement of the entire kitchen was necessary or reasonable; appropriate repairs would produce conformity with the plans and specifications. The owners were awarded rectification damages for proved...

Jurisdiction
Australia
Judgment Date
01 April 2016
Procedural Posture
Home Building Claim Concerning Alleged Defective Residential Building Work and Unpaid Contract Balance / Principal Judgment After Hearing
Outcome
Both monetary claims succeeded in part; the contractor was awarded the unpaid contract balance in HB 15/32089 and the owners were awarded damages in HB 15/41204, with costs to be dealt with on any application on the papers.
Legal Topics
['statutory Warranties' 'defective Work' 'rectification Damages' 'work Order' 'balance Due Under Contract' 'costs Applications']
['home Building' 'contract' 'consumer and Commercial Tribunal Proceedings' 'costs'] ['statutory Warranties' 'defective Work' 'rectification Damages' 'work Order' 'balance Due Under Contract' 'costs Applications']

Case Brief

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Procedural Posture

Home Building Claim Concerning Alleged Defective Residential Building Work and Unpaid Contract Balance / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to determine the parties' building claims under section 48K(1) of the Home Building Act 1989." 'Whether the contractor breached statutory warranties implied by section 18B of the Home Building Act 1989 in supplying and installing the kitchen and butler sink.' 'Whether a work order should be made or damages should be awarded instead.' 'Whether the owners were entitled to damages based on removal and replacement of the kitchen or only the cost of rectifying proved defects.' 'Whether the contractor was entitled to the unpaid contract balance of $5,819.10.' 'Whether the owners were entitled to damages for delay, wall damage and time spent in the proceedings.' 'How any costs application should proceed under section 60 of the Civil and Administrative Tribunal Act 2013 or rule 38 of the Civil and Administrative Tribunal Rules 2014.']

Ratio Decidendi

The Tribunal found that it had jurisdiction and that the contractor was entitled to the admitted unpaid balance of $5,819.10. The owners proved some, but not all, alleged defects and breaches of section 18B of the Home Building Act 1989. Although rectification by the responsible party is the preferred outcome, the prior difficulties between the parties and the contractor's unwillingness to return made damages more appropriate than a work order. The owners did not prove that removal and replacement of the entire kitchen was necessary or reasonable; appropriate repairs would produce conformity with the plans and specifications. The owners were awarded rectification damages for proved...

Court Disposition

Both monetary claims succeeded in part; the contractor was awarded the unpaid contract balance in HB 15/32089 and the owners were awarded damages in HB 15/41204, with costs to be dealt with on any application on the papers.

Orders

  • ['In HB 15/32089 Simon and Katrina Friend must pay Porthaze Pty Limited the sum of $5,819.10 immediately.' 'In HB 15/41204 Porthaze Pty Limited must pay Simon and Katrina Friend the sum of $9,304.00 immediately.' 'In HB 15/41204 any costs application pursuant to section 60 of the Civil and Administrative Tribunal...