MDR Design and Construction Pty Ltd v Ferguson [2024] NSWCATAP 25

MDR Design and Construction Pty Ltd v Ferguson [2024] NSWCATAP 25

Tribunal erred in failing to make necessary findings as to causation for water ingress at sites other than windows, essential to determine Builder's liability for cost of chemical damp proof course. Without a finding that the cause was rising damp attributable to Builder, no basis exists to order payment by Builder for this remedy; issue remitted for findings.

Jurisdiction
Australia
Judgment Date
21 February 2024
Procedural Posture
Appeal / Determination by Appeal Panel
Outcome
Appeal allowed
Legal Topics
['statutory Warranties' 'waterproofing' 'rising Damp' 'rectification' 'damages' 'expert Evidence' 'costs' 'appeal Grounds']
['home Building' 'contract'] ['statutory Warranties' 'waterproofing' 'rising Damp' 'rectification' 'damages' 'expert Evidence' 'costs' 'appeal Grounds']

Case Brief

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Procedural Posture

Appeal / Determination by Appeal Panel

Legal Issues

  1. 1 ['Whether Tribunal erred in not making necessary findings as to cause of water ingress at sites other than windows' "Whether the landscaping constructed by Owners contributed to water ingress and affected Builder's liability" 'Whether installation of chemical damp proof course was a necessary remedy under statutory warranties or contract' 'Appropriate measure of damages and causation']

Ratio Decidendi

Tribunal erred in failing to make necessary findings as to causation for water ingress at sites other than windows, essential to determine Builder's liability for cost of chemical damp proof course. Without a finding that the cause was rising damp attributable to Builder, no basis exists to order payment by Builder for this remedy; issue remitted for findings.

Court Disposition

Appeal allowed

Orders

  • ['Appeal allowed.' 'Tribunal order for Builder to pay Owners $218,615.79 is set aside.' "Issue of Builder's liability for cost of installation of chemical damp proof course remitted to Tribunal for determination." 'Builder to pay Owners $158,255.79 within 28 days as non-disputed contractual liability.' 'Costs order...