Elica Nedelkoska and Ljuben Nedelkoski v Champion Homes Sales Pty Ltd [2015] NSWCATCD 47

Elica Nedelkoska and Ljuben Nedelkoski v Champion Homes Sales Pty Ltd [2015] NSWCATCD 47

The squeaking or creaking in the floor was a defect that interfered with the applicants' use and enjoyment of the dwelling. It existed before the applicants' later alterations and resulted from defective workmanship, including non-compliance with the relevant Australian Standard, so the respondent breached the statutory warranty under section 18B (1)(a) of the Home Building Act 1989. However, the cost of removing and replacing the floating floor was not within the parties' reasonable contemplation when the building contract was made and was too remote, because there was no evidence that the applicants' intention to install a floating floor was discussed at that time.

Jurisdiction
Australia
Judgment Date
08 April 2015
Procedural Posture
Building Claim / Principal Judgment After Hearing
Outcome
Respondent ordered to rectify defective particleboard flooring after the applicants remove the floating timber floor at their own cost; the applicants' claim for monetary compensation dismissed.
Legal Topics
['statutory Warranties' 'proper and Workmanlike Manner' 'defective Particleboard Flooring' 'squeaking or Creaking Floor' 'rectification Orders' 'remoteness of Damages']
['home Building' 'consumer and Commercial' 'contract'] ['statutory Warranties' 'proper and Workmanlike Manner' 'defective Particleboard Flooring' 'squeaking or Creaking Floor' 'rectification Orders' 'remoteness of Damages']

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Procedural Posture

Building Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to hear and determine the applicants' building claim." 'Whether squeaking or creaking in the first floor was a defect covered by the statutory warranties under section 18B of the Home Building Act 1989.' "Whether the squeaking or creaking was caused by the applicants' later alterations or by defective workmanship by the respondent." 'Whether the applicants could recover monetary compensation for removing and replacing the floating floor, cleaning and alternative accommodation.']

Ratio Decidendi

The squeaking or creaking in the floor was a defect that interfered with the applicants' use and enjoyment of the dwelling. It existed before the applicants' later alterations and resulted from defective workmanship, including non-compliance with the relevant Australian Standard, so the respondent breached the statutory warranty under section 18B (1)(a) of the Home Building Act 1989. However, the cost of removing and replacing the floating floor was not within the parties' reasonable contemplation when the building contract was made and was too remote, because there was no evidence that the applicants' intention to install a floating floor was discussed at that time.

Court Disposition

Respondent ordered to rectify defective particleboard flooring after the applicants remove the floating timber floor at their own cost; the applicants' claim for monetary compensation dismissed.

Orders

  • ['The applicants are to arrange at their own cost for removal of the floating timber floor and to advise the respondent when the work has been completed.' "The respondent at its own cost is to investigate and rectify in a proper and workmanlike manner any defect in the particleboard flooring installed in the...