McIntosh v Lennon [2024] NSWSC 169

McIntosh v Lennon [2024] NSWSC 169

The definition of 'owner-builder' in the Home Building Act 1989 (NSW) is to be read as including a person who does owner-builder work under an owner-builder permit issued to them for that work or is required to hold an owner-builder permit to do that work. Reading in these words is necessary to give effect to the statute's evident purpose of protecting purchasers and successors in title through the provision of statutory warranties. On this construction, the plaintiff was an 'owner-builder'—despite not acquiring a permit—and liable for statutory warranties to the defendants.

Parties
Plaintiff: Alan Patrick McIntosh; First Defendant: Stephen Mark Lennon; Second Defendant: Glenda Lennon
Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Appeal From Tribunal Decision / Judgment on Application for Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
Owner Builder Statutory Warranties, Interpretation of Home Building Act 1989 (nsw), Reading Words Into Statutes
Administrative Law Building and Construction Law Statutory Interpretation Owner Builder Statutory Warranties Interpretation of Home Building Act 1989 (nsw) Reading Words Into Statutes

Case Brief

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Parties

Alan Patrick McIntosh

Plaintiff

Stephen Mark Lennon

First Defendant

Glenda Lennon

Second Defendant

Procedural Posture

Appeal From Tribunal Decision / Judgment on Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 Whether a person who undertakes owner-builder work without an owner-builder permit is an 'owner-builder' for the purposes of statutory warranties under Home Building Act 1989 (NSW)
  2. 2 Whether words should be read into the definition of 'owner-builder'

Ratio Decidendi

The definition of 'owner-builder' in the Home Building Act 1989 (NSW) is to be read as including a person who does owner-builder work under an owner-builder permit issued to them for that work or is required to hold an owner-builder permit to do that work. Reading in these words is necessary to give effect to the statute's evident purpose of protecting purchasers and successors in title through the provision of statutory warranties. On this construction, the plaintiff was an 'owner-builder'—despite not acquiring a permit—and liable for statutory warranties to the defendants.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • Leave to appeal is granted.
  • The summons filed 21 April 2023 is dismissed.