Webster v Tom [2018] NSWCATCD 6

Webster v Tom [2018] NSWCATCD 6

The owners established only a limited breach of section 18B(a) of the Home Building Act 1989. The Tribunal found that the owners were contractually responsible for provision of the engineer's geotechnical report and footing and slab plan, but clause 43.2 did not relieve the builder from liability because no applicable law requiring compliance with AS 2870 was identified. The evidence did not establish that the slab and footings had failed, that the piers were absent, that AS 2870 was itself a legal requirement, or that the dwelling was dangerous to health or not reasonably fit for occupation. The proven defects, including two or possibly three category 3 external cracks, internal...

Jurisdiction
Australia
Judgment Date
08 March 2018
Procedural Posture
Building Claim Under the Home Building Act 1989 Concerning Alleged Defective Residential Building Work / Principal Judgment After Hearing
Outcome
The owners succeeded only in part. The builder was ordered to pay $6,643.49 immediately, with leave to the parties to apply for costs.
Legal Topics
['statutory Warranties for Residential Building Work' 'reasonably Fit for Occupation as a Dwelling' 'proper and Workmanlike Manner' 'footings and Slab Design' 'external and Internal Cracking' 'australian Standards as 2870' 'rectification of Defective Residential Building Work']
['building and Construction' 'consumer Law' 'contract Law'] ['statutory Warranties for Residential Building Work' 'reasonably Fit for Occupation as a Dwelling' 'proper and Workmanlike Manner' 'footings and Slab Design' 'external and Internal Cracking' 'australian Standards as 2870' 'rectification of Defective Residential Building Work']

Case Brief

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Procedural Posture

Building Claim Under the Home Building Act 1989 Concerning Alleged Defective Residential Building Work / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the builder breached the statutory warranty in section 18B(a) of the Home Building Act 1989 by failing to perform work in a proper and workmanlike manner and in accordance with the plans and specifications.' 'Whether the builder breached section 18B(c) of the Home Building Act 1989 by failing to do the work in accordance with law.' 'Whether the dwelling was not reasonably fit for occupation as a dwelling under section 18B(e) of the Home Building Act 1989.' 'Whether the work and materials were not reasonably fit for the specified purpose or result under section 18B(f) of the Home Building Act 1989.' 'Whether an implied term that the dwelling be reasonably fit for human occupation applied and was breached.' 'Whether the owners or the builder were responsible for engaging the engineer who prepared the geotechnical report and footing and slab plan.' 'Whether clause 43.2 of the contract relieved the builder from liability.' 'Whether damages should be awarded for demolition and rebuilding or for limited rectification only.']

Ratio Decidendi

The owners established only a limited breach of section 18B(a) of the Home Building Act 1989. The Tribunal found that the owners were contractually responsible for provision of the engineer's geotechnical report and footing and slab plan, but clause 43.2 did not relieve the builder from liability because no applicable law requiring compliance with AS 2870 was identified. The evidence did not establish that the slab and footings had failed, that the piers were absent, that AS 2870 was itself a legal requirement, or that the dwelling was dangerous to health or not reasonably fit for occupation. The proven defects, including two or possibly three category 3 external cracks, internal...

Court Disposition

The owners succeeded only in part. The builder was ordered to pay $6,643.49 immediately, with leave to the parties to apply for costs.

Orders

  • ['Andrew Rolf Tom must pay Deidree Webster and Marc Webster the sum of $6,643.49 immediately.' 'The parties have leave to bring an application for costs.' 'Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to...