Howell v Talevski [2021] NSWSC 1133

Howell v Talevski [2021] NSWSC 1133

The work was not complete under cl 8 of the General Conditions because it was not free of apparent defects and was not finished in accordance with the contract. Termination of the Building Contract did not render the incomplete work complete, so s 18E(1)(a) did not apply. For s 18E(1)(b), the parties' communications showed that they agreed to extend the date for completion beyond July 2011. Because the proceedings were commenced on 17 July 2018, they were commenced within seven years of the extended completion date and were not out of time. The Court also found defects as set out in the attached schedule and held that loss of rent was recoverable in principle because it flowed ordinarily...

Jurisdiction
Australia
Judgment Date
07 September 2021
Procedural Posture
Equity Technology and Construction List; Residential Building Work Dispute Concerning Construction of a Duplex / Principal Judgment After Hearing; Proceedings Commenced in NCAT and Transferred to the Supreme Court of New South Wales
Outcome
Proceedings not out of time; defects found as set out in attached schedule.
Legal Topics
['home Building Act Statutory Warranties' 'residential Building Work' 'completion of Work' 'extension of Time and Variation' 'defective and Incomplete Work' 'mitigation' 'loss of Rent']
['building and Construction' 'contract' 'limitation of Actions' 'damages'] ['home Building Act Statutory Warranties' 'residential Building Work' 'completion of Work' 'extension of Time and Variation' 'defective and Incomplete Work' 'mitigation' 'loss of Rent']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Technology and Construction List; Residential Building Work Dispute Concerning Construction of a Duplex / Principal Judgment After Hearing; Proceedings Commenced in NCAT and Transferred to the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether Mrs Howell's proceedings for breach of statutory warranties were commenced out of time under s 18E of the Home Building Act 1989 (NSW)." 'Whether the work under the Building Contract was complete within the meaning of the contract and s 3B of the Home Building Act 1989 (NSW).' 'Whether termination of the Building Contract rendered incomplete work complete for the purposes of s 18E(1)(a).' 'Whether the parties varied or extended the date for completion of the work beyond July 2011.' 'Whether alleged defects and incomplete work were established.' 'Whether Mrs Howell failed to mitigate her loss.' 'Whether Mrs Howell could recover loss of rent for the unit intended to be leased.']

Ratio Decidendi

The work was not complete under cl 8 of the General Conditions because it was not free of apparent defects and was not finished in accordance with the contract. Termination of the Building Contract did not render the incomplete work complete, so s 18E(1)(a) did not apply. For s 18E(1)(b), the parties' communications showed that they agreed to extend the date for completion beyond July 2011. Because the proceedings were commenced on 17 July 2018, they were commenced within seven years of the extended completion date and were not out of time. The Court also found defects as set out in the attached schedule and held that loss of rent was recoverable in principle because it flowed ordinarily...

Court Disposition

Proceedings not out of time; defects found as set out in attached schedule.

Orders

  • ['The parties should confer and agree on what further steps are necessary to resolve the issues that have arisen between them.' 'The matter will be listed for directions at 9.30 am on a date convenient to counsel.' 'Counsel should confer and agree on an appropriate date and let the Associate know.']