Chen v Austral Built Pty Ltd [2022] NSWCATAP 67

Chen v Austral Built Pty Ltd [2022] NSWCATAP 67

The Tribunal at first instance erred in law by failing to consider an implied contractual term and the effect of statutory obligations requiring the builder to provide a sewer service diagram and arrange for necessary inspections and certification. Such obligation is inferred from the contractual scope of work and the statutory requirements under the Home Building Act 1989 (NSW).

Jurisdiction
Australia
Judgment Date
15 March 2022
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Appeal upheld in respect of order 2; order 2 set aside and substituted with new orders requiring respondent to prepare sewer service diagram, arrange certification, and providing appellant leave to renew if non-compliance.
Legal Topics
['implied Contractual Terms' 'residential Building Contracts' 'statutory Obligations of Builders' 'certification of Building Work']
['construction Law' 'contract Law'] ['implied Contractual Terms' 'residential Building Contracts' 'statutory Obligations of Builders' 'certification of Building Work']

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Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the builder was contractually or statutorily obligated to provide a sewer service diagram and arrange certification for sewerage and plumbing works.']

Ratio Decidendi

The Tribunal at first instance erred in law by failing to consider an implied contractual term and the effect of statutory obligations requiring the builder to provide a sewer service diagram and arrange for necessary inspections and certification. Such obligation is inferred from the contractual scope of work and the statutory requirements under the Home Building Act 1989 (NSW).

Court Disposition

Appeal upheld in respect of order 2; order 2 set aside and substituted with new orders requiring respondent to prepare sewer service diagram, arrange certification, and providing appellant leave to renew if non-compliance.

Orders

  • ["Within two months of the date of publication of these orders, pursuant to s 48O(1)(c) of the Home Building Act 1989 (NSW), the respondent is to prepare, or cause to be prepared, a sewer service diagram for completion of the residential building work the subject of the appellant's application in the first instance...