Lamproglou v CTY Construction Pty Ltd [2022] NSWCATCD 165

Lamproglou v CTY Construction Pty Ltd [2022] NSWCATCD 165

The claim was within jurisdiction because the non-major alleged defects became apparent within the last six months of the two-year statutory warranty period, permitting commencement within the further six-month period, and the application was lodged before that extended period expired. The defects proved by the homeowners constituted breaches of the s 18B warranties as to due care and skill and, for some items, materials. The $4,000 allowance in the contract for sale did not benefit the builder and could not exclude statutory warranty rights. Having regard to s 48MA, rectification by the builder was the preferred outcome because the builder remained licensed, capable of performing the...

Jurisdiction
Australia
Judgment Date
25 July 2022
Procedural Posture
Home Building Claim Concerning Alleged Residential Building Defects and Statutory Warranties Under the Home Building Act 1989 (nsw) / Principal Judgment After Final Special Fixture Hearing; Orders Amended Pursuant to S 63 of the Civil and Administrative Tribunal Act 2013
Outcome
Leave granted to amend the amount in dispute; work order made requiring CTY Construction Pty Ltd to rectify specified defects by 30 September 2022; application otherwise dismissed; costs timetable set.
Legal Topics
['home Building Act 1989 (nsw) Statutory Warranties' 'due Care and Skill' 'materials Warranty' 'limitation Period' 'minor Defects' 'preferred Outcome of Rectification by Responsible Party' 'work Order']
['building and Construction' 'consumer Law' 'residential Building Statutory Warranties'] ['home Building Act 1989 (nsw) Statutory Warranties' 'due Care and Skill' 'materials Warranty' 'limitation Period' 'minor Defects' 'preferred Outcome of Rectification by Responsible Party' 'work Order']

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Procedural Posture

Home Building Claim Concerning Alleged Residential Building Defects and Statutory Warranties Under the Home Building Act 1989 (nsw) / Principal Judgment After Final Special Fixture Hearing; Orders Amended Pursuant to S 63 of the Civil and Administrative Tribunal Act 2013

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to deal with the building claim having regard to the statutory warranty limitation periods.' 'Whether the homeowners should be granted leave to amend their claim to increase the amount of the money order sought.' 'Whether CTY Construction Pty Ltd breached the s 18B statutory warranties in relation to the building work.' "What effect, if any, the allowance made for building defects in the contract for sale had on the homeowners' claim." 'Whether the preferred outcome in s 48MA of the Home Building Act 1989 (NSW) should be applied.' 'If a work order was not appropriate, what economic loss had been proved by the homeowners.']

Ratio Decidendi

The claim was within jurisdiction because the non-major alleged defects became apparent within the last six months of the two-year statutory warranty period, permitting commencement within the further six-month period, and the application was lodged before that extended period expired. The defects proved by the homeowners constituted breaches of the s 18B warranties as to due care and skill and, for some items, materials. The $4,000 allowance in the contract for sale did not benefit the builder and could not exclude statutory warranty rights. Having regard to s 48MA, rectification by the builder was the preferred outcome because the builder remained licensed, capable of performing the...

Court Disposition

Leave granted to amend the amount in dispute; work order made requiring CTY Construction Pty Ltd to rectify specified defects by 30 September 2022; application otherwise dismissed; costs timetable set.

Orders

  • ['Leave is granted to the homeowners to amend the amount in dispute.' 'CTY Construction Pty Ltd is to carry out the following work in a proper and trades-person-like manner before 30 September 2022: apply or re-apply grout as necessary to the downstairs bathroom and main bathroom floor and wall tiles; in the main...