Scuderi v Corfu Pools Pty Limited [2019] NSWCATCD 74

Scuderi v Corfu Pools Pty Limited [2019] NSWCATCD 74

The claim was within time because the applicants became aware of the claimed breach within the last 6 months of the 2 year warranty period and filed within the additional 6 month period. However, the applicants failed to prove on the balance of probabilities that the defective paving and efflorescence were caused by the respondent's breach of statutory warranty or lack of due care and skill. The evidence did not sufficiently exclude the competing explanation that the defects were caused by the applicants' surrounding concrete slab and surrounding paving, which were not part of the respondent's contract works, including insufficient expansion or control joints. Because liability was not...

Jurisdiction
Australia
Judgment Date
29 October 2019
Procedural Posture
Home Building Statutory Warranty Claim and Alternative Consumer Claim / Hearing and Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['statutory Warranties' 'home Building Work' 'defective Work' 'swimming Pool Construction' 'burden of Proof' 'limitation Period' 'consumer Guarantee of Due Care and Skill']
['home Building' 'consumer Law' 'civil Procedure'] ['statutory Warranties' 'home Building Work' 'defective Work' 'swimming Pool Construction' 'burden of Proof' 'limitation Period' 'consumer Guarantee of Due Care and Skill']

Case Brief

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Procedural Posture

Home Building Statutory Warranty Claim and Alternative Consumer Claim / Hearing and Principal Judgment

Legal Issues

  1. 1 ['Whether the applicants commenced the statutory warranty claim within time under section 18E of the Home Building Act NSW 1989.' 'Whether the respondent breached the statutory warranty in section 18B(1)(a) of the Home Building Act NSW 1989 by failing to perform the contract works in a proper and workmanlike manner or in accordance with plans and specifications.' "Whether the claimed loose, drummy and cracked paving and efflorescence were caused by the respondent's workmanship or by work arranged by the applicants, including the surrounding concrete slab and surrounding paving." 'Whether, if the Home Building Act claim were out of time, the Tribunal could determine the matter as a consumer claim under Part 6A of the Fair Trading Act NSW 1987 based on section 60 of the Australian Consumer Law.']

Ratio Decidendi

The claim was within time because the applicants became aware of the claimed breach within the last 6 months of the 2 year warranty period and filed within the additional 6 month period. However, the applicants failed to prove on the balance of probabilities that the defective paving and efflorescence were caused by the respondent's breach of statutory warranty or lack of due care and skill. The evidence did not sufficiently exclude the competing explanation that the defects were caused by the applicants' surrounding concrete slab and surrounding paving, which were not part of the respondent's contract works, including insufficient expansion or control joints. Because liability was not...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']