McIntosh v Lennon [2023] NSWCATAP 83

McIntosh v Lennon [2023] NSWCATAP 83

The appellant, though not the registered proprietor, was the owner in equity of the land under a resulting trust and thus subject to the statutory warranty regime. The correct interpretation of 'owner-builder' under the Home Building Act 1989 (NSW) extends the statutory obligations and liabilities to those who carry out owner-builder work without obtaining permits, as failing to so construe would undermine legislative purpose and consumer protection. Successors in title were able to claim under statutory warranties, as their knowledge of defects did not amount to 'full knowledge' due to the appellant's misleading representations as to the extent and significance of the defects. The appeal...

Jurisdiction
Australia
Judgment Date
29 March 2023
Procedural Posture
Civil Appeal / Determination of Appeal in the Civil and Administrative Tribunal Appeal Panel
Outcome
Appeal dismissed; leave to appeal refused.
Legal Topics
['owner Builder Statutory Warranties' 'resulting Trust' 'presumption of Advancement' 'consumer Protection in Home Building' 'interpretation of Home Building Act 1989 (nsw)']
['building and Construction Law' 'trusts Law' 'property Law'] ['owner Builder Statutory Warranties' 'resulting Trust' 'presumption of Advancement' 'consumer Protection in Home Building' 'interpretation of Home Building Act 1989 (nsw)']

Case Brief

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Procedural Posture

Civil Appeal / Determination of Appeal in the Civil and Administrative Tribunal Appeal Panel

Legal Issues

  1. 1 ["Whether appellant was an 'owner' under the Home Building Act 1989 (NSW) by way of resulting trust" "Whether the appellant was an 'owner-builder' under the HBA when no owner-builder permit was obtained" 'Whether successors in title could claim statutory warranties' "Scope and interpretation of 'major defect' under the HBA" "Impact of respondents' pre-purchase knowledge of defects on recovery"]

Ratio Decidendi

The appellant, though not the registered proprietor, was the owner in equity of the land under a resulting trust and thus subject to the statutory warranty regime. The correct interpretation of 'owner-builder' under the Home Building Act 1989 (NSW) extends the statutory obligations and liabilities to those who carry out owner-builder work without obtaining permits, as failing to so construe would undermine legislative purpose and consumer protection. Successors in title were able to claim under statutory warranties, as their knowledge of defects did not amount to 'full knowledge' due to the appellant's misleading representations as to the extent and significance of the defects. The appeal...

Court Disposition

Appeal dismissed; leave to appeal refused.

Orders

  • ['The appeal is dismissed.' 'Leave to appeal is refused.' 'If any party desires to make an application for costs, they must inform the other party within 7 days; submissions and evidence for costs to be exchanged according to detailed directions within 7, 14, and 21 days of the decision; parties to indicate whether...