Glen MacFadyen and Heidi MacFadyen v George Tadrosse [2014] NSWCATCD 194

Glen MacFadyen and Heidi MacFadyen v George Tadrosse [2014] NSWCATCD 194

The respondent failed to prove on the balance of probabilities an earlier practical completion date in November 2011. In the absence of contractual evidence, practical completion was presumed under section 3B(3)(d) of the Home Building Act 1989 to have occurred 18 months after the owner-builder permit issued on 28 July 2010, namely 27 January 2012. The application lodged on 6 December 2013 was therefore within the two-year warranty period and the Tribunal had jurisdiction. On the defects claim, only those items established by admissible and persuasive evidence, concessions, or adequate expert reasoning as breaches of the statutory warranties were allowed. The allowed rectification items...

Jurisdiction
Australia
Judgment Date
14 October 2014
Procedural Posture
Building Claim for Alleged Breach of Statutory Warranties Under the Home Building Act 1989 / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Respondent's jurisdiction/time defence dismissed; applicants awarded $18,070.93 immediately; liberty granted for costs applications to be determined on the papers.
Legal Topics
['statutory Warranties' 'owner Builder Work' 'limitation Period for Building Claims' 'tribunal Jurisdiction' 'building Defects' 'expert Evidence' 'costs Applications']
['home Building' 'consumer Law' 'civil Procedure'] ['statutory Warranties' 'owner Builder Work' 'limitation Period for Building Claims' 'tribunal Jurisdiction' 'building Defects' 'expert Evidence' 'costs Applications']

Case Brief

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Procedural Posture

Building Claim for Alleged Breach of Statutory Warranties Under the Home Building Act 1989 / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the Tribunal lacked jurisdiction under section 48K(7) of the Home Building Act 1989 because the building claim was lodged after the warranty period in section 18E.' 'Whether practical completion occurred in November 2011 as asserted by the owner builder or on the presumed date under section 3B(3)(d) of the Home Building Act 1989.' 'Whether the claimed items constituted breaches of the statutory warranties implied by sections 18B and 18C of the Home Building Act 1989.' "What amount of rectification damages, builder's margin and GST should be awarded." 'How any costs application should be dealt with.']

Ratio Decidendi

The respondent failed to prove on the balance of probabilities an earlier practical completion date in November 2011. In the absence of contractual evidence, practical completion was presumed under section 3B(3)(d) of the Home Building Act 1989 to have occurred 18 months after the owner-builder permit issued on 28 July 2010, namely 27 January 2012. The application lodged on 6 December 2013 was therefore within the two-year warranty period and the Tribunal had jurisdiction. On the defects claim, only those items established by admissible and persuasive evidence, concessions, or adequate expert reasoning as breaches of the statutory warranties were allowed. The allowed rectification items...

Court Disposition

Respondent's jurisdiction/time defence dismissed; applicants awarded $18,070.93 immediately; liberty granted for costs applications to be determined on the papers.

Orders

  • ["The respondent's defence that the Tribunal does not have the jurisdiction to hear this building claim pursuant to section 48(K)(7) of the Home Building Act 1989, is dismissed." 'The respondent must pay the applicants the sum of $18,070.93 immediately.' 'Either party is at liberty to make a costs application in...