Marcello Capone and Nicole Masson v Richard Lambert [2014] NSWCATCD 124

Marcello Capone and Nicole Masson v Richard Lambert [2014] NSWCATCD 124

The builder breached statutory warranties by failing to comply with development consent conditions relating to maximum soil batter slope and engineer approval for slopes greater than 1m, and by constructing the garage surface to 'fall' back toward the entrance, causing water ingress and consequential damage. The presumption of regularity from the occupation certificate was rebutted by evidence. Damages are awarded based on rectification of breaches causally connected to the loss, except claims precluded due to owners’ prior knowledge of drainage issues at the garage side as per Allianz v Waterbrook principle.

Jurisdiction
Australia
Judgment Date
16 July 2014
Procedural Posture
Building Claim / Principal Judgment
Outcome
The respondent must pay the applicants damages within 21 days. The parties may apply for costs as directed.
Legal Topics
['statutory Warranties' 'development Consent Conditions' 'causation' 'damages' 'presumption of Regularity']
['building and Construction' 'property Law'] ['statutory Warranties' 'development Consent Conditions' 'causation' 'damages' 'presumption of Regularity']

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Procedural Posture

Building Claim / Principal Judgment

Legal Issues

  1. 1 ['Whether the builder breached statutory warranties under the Home Building Act 1989' 'Whether the builder failed to comply with conditions of development consent' 'Whether builder’s breach caused water ingress and resulting loss' 'Effect of presumption of regularity regarding occupation certificate' 'Applicability of successor in title’s knowledge of defects in limiting recovery']

Ratio Decidendi

The builder breached statutory warranties by failing to comply with development consent conditions relating to maximum soil batter slope and engineer approval for slopes greater than 1m, and by constructing the garage surface to 'fall' back toward the entrance, causing water ingress and consequential damage. The presumption of regularity from the occupation certificate was rebutted by evidence. Damages are awarded based on rectification of breaches causally connected to the loss, except claims precluded due to owners’ prior knowledge of drainage issues at the garage side as per Allianz v Waterbrook principle.

Court Disposition

The respondent must pay the applicants damages within 21 days. The parties may apply for costs as directed.

Orders

  • ['The respondent must pay the applicants the sum of $65,716.57 within 21 days of the date of this decision.' 'The parties are at liberty to make a costs application in these proceedings.' 'Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 or rule 38 of the Civil and...