Christopher Kerrie Gates v Crown Constructions Pty Limited [2014] NSWCATCD 172

Christopher Kerrie Gates v Crown Constructions Pty Limited [2014] NSWCATCD 172

The Tribunal had jurisdiction because the claim was a building claim. It was undisputed that the bathroom waterproofing failed, so the respondent breached the statutory warranties implied by section 18B of the Home Building Act 1989 (NSW). The Tribunal preferred the evidence of Messrs Grave and Novkovic, who inspected the bathroom before rectification, over Mr Skrinnikoff, who had not inspected it, and found that applying sealant over existing tiles was not an appropriate repair but only a band aid solution. The necessary shower repair was the work quoted by Bathroom Elegance, and $5,060.00 was fair and reasonable. The applicant did not fail to mitigate because he had engaged with the...

Jurisdiction
Australia
Judgment Date
23 September 2014
Procedural Posture
Building Claim for Compensation for Alleged Breach of Statutory Warranties Under the Home Building Act 1989 (nsw) Concerning Bathroom Waterproofing and Tiling Defects / Principal Judgment After Hearing
Outcome
Application allowed in part. The waterproofing rectification claim was allowed for $5,060.00 and the tiling claim for $1,540.00 was dismissed.
Legal Topics
['building Defects' 'waterproofing Failure' 'drummy Tiles' 'home Warranty' 'mitigation of Loss' 'opportunity to Rectify Defects']
['building and Construction' 'residential Building Work' 'statutory Warranties' 'civil and Administrative Tribunal Procedure'] ['building Defects' 'waterproofing Failure' 'drummy Tiles' 'home Warranty' 'mitigation of Loss' 'opportunity to Rectify Defects']

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Procedural Posture

Building Claim for Compensation for Alleged Breach of Statutory Warranties Under the Home Building Act 1989 (nsw) Concerning Bathroom Waterproofing and Tiling Defects / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the applicant's claim was a building claim within the Tribunal's jurisdiction under the Home Building Act 1989 (NSW)." 'Whether the respondent breached statutory warranties implied by section 18B of the Home Building Act 1989 (NSW) because waterproofing in the bathroom failed.' 'Whether applying a hydro barrier sealant over existing tiles was an appropriate method of rectifying the water leaks, or whether removal of tiles, new waterproofing and retiling was required.' 'Whether the applicant proved the claimed tiling defect and entitlement to $1,540.00 for removal and replacement of wall tiles.' "Whether the applicant failed to mitigate loss by refusing the respondent's proposed rectification methods and engaging another tradesperson."]

Ratio Decidendi

The Tribunal had jurisdiction because the claim was a building claim. It was undisputed that the bathroom waterproofing failed, so the respondent breached the statutory warranties implied by section 18B of the Home Building Act 1989 (NSW). The Tribunal preferred the evidence of Messrs Grave and Novkovic, who inspected the bathroom before rectification, over Mr Skrinnikoff, who had not inspected it, and found that applying sealant over existing tiles was not an appropriate repair but only a band aid solution. The necessary shower repair was the work quoted by Bathroom Elegance, and $5,060.00 was fair and reasonable. The applicant did not fail to mitigate because he had engaged with the...

Court Disposition

Application allowed in part. The waterproofing rectification claim was allowed for $5,060.00 and the tiling claim for $1,540.00 was dismissed.

Orders

  • ['The respondent Crown Constructions Pty Ltd is ordered to pay the applicant Christopher Kerrie Gates the amount of $5,060.00 within 28 days of the date of this order.']