Clark v Universal Property Group Pty Ltd [2021] NSWCATCD 151

Clark v Universal Property Group Pty Ltd [2021] NSWCATCD 151

The applicant, as lot owner and successor in title, could prosecute statutory warranty claims only for defects relating to his lot property, not common property. The proceedings were commenced within the applicable limitation period. Although rectification by the responsible party is the preferred outcome under s 48MA, a money order was warranted because the applicant had lost trust in the respondent and there was substance in that position. The applicant proved only some lot property defect claims, and the Tribunal assessed the recoverable amount at $7,064.96 including builders margin and GST.

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Building Claim in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Final Hearing and Decision
Outcome
Application allowed in part; respondent ordered to pay the applicant $7,064.96.
Legal Topics
['statutory Warranties' 'residential Building Work Defects' 'rectification of Defective Work' 'assessment of Damages' 'lot Property and Common Property' 'limitation Period']
['building and Construction' 'consumer Law' 'home Building'] ['statutory Warranties' 'residential Building Work Defects' 'rectification of Defective Work' 'assessment of Damages' 'lot Property and Common Property' 'limitation Period']

Case Brief

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Procedural Posture

Building Claim in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Final Hearing and Decision

Legal Issues

  1. 1 ['Which work undertaken by the respondent could be the subject of a building claim brought by the applicant.' "Whether the applicant's claim was brought in time." 'Whether the Tribunal should apply s 48MA of the Home Building Act 1989 (NSW) by ordering rectification by the responsible party.' 'What sum of money should be awarded to the applicant.']

Ratio Decidendi

The applicant, as lot owner and successor in title, could prosecute statutory warranty claims only for defects relating to his lot property, not common property. The proceedings were commenced within the applicable limitation period. Although rectification by the responsible party is the preferred outcome under s 48MA, a money order was warranted because the applicant had lost trust in the respondent and there was substance in that position. The applicant proved only some lot property defect claims, and the Tribunal assessed the recoverable amount at $7,064.96 including builders margin and GST.

Court Disposition

Application allowed in part; respondent ordered to pay the applicant $7,064.96.

Orders

  • ['The Respondent to pay the applicant the sum of $7,064.96 on or before 12 January 2022.']