Hiperia Holdings Pty Limited v Sghabi;; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 105

Hiperia Holdings Pty Limited v Sghabi;; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 105

The builder was not liable for the window and brickwork defects or related consequential loss because the owner failed to prove these were within the builder's scope of work. The Tribunal erred by awarding damages for work for which the builder was not responsible and gave inadequate reasons in part. The owner's appeal on inclusion of GST succeeded. The proper damages sum is $35,514.45, reflecting items actually within the builder's liability, with appropriate margins, contingency, and GST.

Jurisdiction
Australia
Judgment Date
11 June 2024
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Appeal of Christopher Sghabi allowed; appeal of Hiperia Holdings Pty Ltd allowed in part.
Legal Topics
['statutory Warranties Under Home Building Act' 'assessment of Building Defects' 'procedural Fairness' 'adequacy of Reasons' 'damages Calculation' 'contingency Allowances' 'costs Orders']
['building and Construction Law' 'tribunal Appeals'] ['statutory Warranties Under Home Building Act' 'assessment of Building Defects' 'procedural Fairness' 'adequacy of Reasons' 'damages Calculation' 'contingency Allowances' 'costs Orders']

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Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the builder was liable for defective windows and consequential loss' 'Whether the Tribunal provided adequate reasons' 'Whether damages and contingencies were properly calculated and awarded' 'Application of statutory warranties under Home Building Act 1989 (NSW)' 'Procedural fairness – failure to address submissions']

Ratio Decidendi

The builder was not liable for the window and brickwork defects or related consequential loss because the owner failed to prove these were within the builder's scope of work. The Tribunal erred by awarding damages for work for which the builder was not responsible and gave inadequate reasons in part. The owner's appeal on inclusion of GST succeeded. The proper damages sum is $35,514.45, reflecting items actually within the builder's liability, with appropriate margins, contingency, and GST.

Court Disposition

Appeal of Christopher Sghabi allowed; appeal of Hiperia Holdings Pty Ltd allowed in part.

Orders

  • ['Order 1 of Tribunal set aside.' 'Hiperia Holdings Pty Ltd to pay Christopher Charbel Sghabi $35,514.45 within 14 days.' "Owner to pay builder's costs of builder's appeal." "No order as to costs in owner's appeal (parties to pay own costs)." 'Timetabled orders for any alternate costs application.' 'If builder...