Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158

Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158

The evidence, including the experts' agreement and the extent of water ingress and collapsed supports, supported findings that the builder performed defective work in breach of the statutory warranties in s 18B of the Home Building Act 1989 (NSW). Possible deficiencies in engineering drawings did not absolve the builder, because the work as constructed failed to comply with relevant NCC/BCA performance requirements and the builder had not shown those alleged design issues were the sole or material cause. However, the Tribunal erred in formulating work orders that required the builder to engage engineers to advise on the means of rectification and then perform work accordingly, because...

Jurisdiction
Australia
Judgment Date
28 June 2018
Procedural Posture
Internal Appeal Under S 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (nsw) Concerning Home Building Applications / Appeal Panel Decision on Appeal From the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal
Outcome
Appeal allowed in part; primary ground concerning breach of s 18B dismissed; appeal upheld in part concerning the ambit of the Tribunal's work orders; costs reserved.
Legal Topics
['statutory Warranties' 'defective Residential Building Work' 'work Orders' 'rectification of Defective Work' 'tribunal Powers Under S 48 O of the Home Building Act 1989 (nsw)' 'waterproofing' 'structural Stability']
['home Building' 'consumer and Commercial Law' 'administrative Appeals' 'building and Construction'] ['statutory Warranties' 'defective Residential Building Work' 'work Orders' 'rectification of Defective Work' 'tribunal Powers Under S 48 O of the Home Building Act 1989 (nsw)' 'waterproofing' 'structural Stability']

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Procedural Posture

Internal Appeal Under S 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (nsw) Concerning Home Building Applications / Appeal Panel Decision on Appeal From the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ["Whether the Tribunal erred in determining the claim and making work orders under s 48O(1) of the Home Building Act 1989 (NSW) without proof or findings as to defects, remedial scope and cost, and the builder's liability under the Act or contract." 'Whether possible deficiencies in structural engineering drawings meant the builder was not liable for water penetration and collapsed structural supports.' 'Whether orders requiring the builder to engage geotechnical and structural engineers to advise on rectification, and then perform work in accordance with that advice, were within power or an appropriate exercise of discretion under s 48O of the Home Building Act 1989 (NSW).']

Ratio Decidendi

The evidence, including the experts' agreement and the extent of water ingress and collapsed supports, supported findings that the builder performed defective work in breach of the statutory warranties in s 18B of the Home Building Act 1989 (NSW). Possible deficiencies in engineering drawings did not absolve the builder, because the work as constructed failed to comply with relevant NCC/BCA performance requirements and the builder had not shown those alleged design issues were the sole or material cause. However, the Tribunal erred in formulating work orders that required the builder to engage engineers to advise on the means of rectification and then perform work accordingly, because...

Court Disposition

Appeal allowed in part; primary ground concerning breach of s 18B dismissed; appeal upheld in part concerning the ambit of the Tribunal's work orders; costs reserved.

Orders

  • ['Appeal allowed in part.' 'Costs of the appeal are reserved.' 'Within 21 days of the date of the decision, each party to file and serve a proposed scope of works; proposed work order; and any written submissions in regards to the proposed work order to reflect the findings of the Appeal Panel in these proceedings.'...