B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271

B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271

The Tribunal did not err in upholding liability for defective leaking windows or in rejecting the appellant's mitigation and access arguments, because there was evidence supporting the finding that the windows were defective and it was reasonable for the respondents to use another supplier after the failed attempted...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 September 2021
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) Concerning a Home Building Application Under the Home Building Act 1989 (nsw) / Appeal Panel Decision From Consumer and Commercial Division Decision Dated 2 October 2020
Outcome
Appeal allowed in part; leave to appeal granted to the extent necessary in relation to the scaffolding award; Tribunal monetary order varied from $50,771.69 to $17,980; Tribunal costs order set aside.
Legal Topics
['home Building Act 1989 (nsw) Statutory Warranties' 'defective Residential Building Work' 'mitigation of Loss' 'duty to Allow Reasonable Access for Rectification' 'measure of Compensation for Defective Building Work' 'internal Appeals in Ncat' 'jones V Dunkel Inference' 'costs']
['building and Construction' 'consumer Law' 'contract Law' 'civil Procedure'] ['home Building Act 1989 (nsw) Statutory Warranties' 'defective Residential Building Work' 'mitigation of Loss' 'duty to Allow Reasonable Access for Rectification' 'measure of Compensation for Defective Building Work' 'internal Appeals in Ncat' 'jones V Dunkel Inference' 'costs']

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) Concerning a Home Building Application Under the Home Building Act 1989 (nsw) / Appeal Panel Decision From Consumer and Commercial Division Decision Dated 2 October 2020

Legal Issues

  1. 1 ['Whether the Tribunal erred in relation to contractual obligations about waterproofing and flashing of windows.' 'Whether the Tribunal erred by failing to give effect to a contractual limitation of liability to repair or replacement.' "Whether the Tribunal erred by failing to give effect to the respondents' obligation under the Deed to make good damage caused by removal or installation of windows." 'Whether the Tribunal failed to take into account ss 18BA and 48MA of the Home Building Act 1989 (NSW) when assessing mitigation and refusal of access for rectification.' "Whether the Tribunal erred in awarding the respondents the amount of the builder's invoices without proof that the work was caused by breach of statutory warranties or required to bring the work into conformity with the contract." "Whether the Tribunal's finding that the windows were defective because small joint sealer was not properly installed was against the weight of evidence or otherwise erroneous." 'Whether the Tribunal erred by awarding $9,240 for scaffolding when the respondents had reduced that claim to $3,960 and the evidence did not support the higher amount.']

Ratio Decidendi

The Tribunal did not err in upholding liability for defective leaking windows or in rejecting the appellant's mitigation and access arguments, because there was evidence supporting the finding that the windows were defective and it was reasonable for the respondents to use another supplier after the failed attempted rectification and continuing dispute. However, the Tribunal erred in awarding the builder's invoices because the respondents bore the onus of proving that those costs were caused by the appellant's breach and were required to bring the work into conformity with the contract, and the invoices and evidence did not establish that causal link or any necessary apportionment. The...

Court Disposition

Appeal allowed in part; leave to appeal granted to the extent necessary in relation to the scaffolding award; Tribunal monetary order varied from $50,771.69 to $17,980; Tribunal costs order set aside.

Orders

  • ['Appeal allowed in part.' 'Grant leave to appeal to the extent necessary in relation to the award of $9,240 in respect of the costs of scaffolding.' 'Vary Order (1) made on 2 October 2020 by changing the sum of $50,771.69 to the sum of $17,980.' 'Set aside Order (2) made on 2 October 2020.' 'The stay of the orders...