Martignago v Visual Building Construction Pty Ltd [2022] NSWCATCD 219

Martignago v Visual Building Construction Pty Ltd [2022] NSWCATCD 219

The Tribunal had jurisdiction because the application was commenced within six years of completion of the work and the defects were major defects. The uncontested expert and photographic evidence established defects in waterproofing and structural elements that breached the statutory warranties in s 18B of the Home Building Act 1989 (NSW). A work order was inappropriate because the respondent was no longer licensed and, in any event, its non-participation and failure to acknowledge the defects meant there could be no confidence it would rectify the work properly. The expert estimates of $36,542 and $23,970 represented reasonable rectification costs, so the applicant was entitled to a...

Jurisdiction
Australia
Judgment Date
24 October 2022
Procedural Posture
Building Claim for Defects in Residential Building Work and Breach of Statutory Warranties / Final Hearing; Hearing Proceeded in the Absence of the Respondent
Outcome
Application allowed; money order and costs order made for the applicant.
Legal Topics
['home Building Act 1989 (nsw) Statutory Warranties' 'defective Residential Building Work' 'major Defects' 'rectification Costs' 'work Order Versus Money Order' 'tribunal Jurisdiction and Limitation Period' 'costs Following the Event']
['building and Construction' 'consumer Law' 'costs'] ['home Building Act 1989 (nsw) Statutory Warranties' 'defective Residential Building Work' 'major Defects' 'rectification Costs' 'work Order Versus Money Order' 'tribunal Jurisdiction and Limitation Period' 'costs Following the Event']

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

Building Claim for Defects in Residential Building Work and Breach of Statutory Warranties / Final Hearing; Hearing Proceeded in the Absence of the Respondent

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to determine the building claim within the applicable statutory warranty period.' 'Whether the defects identified in the waterproofing, slab edge beam, roof framing and floor framing were major defects and breaches of the statutory warranties in s 18B of the Home Building Act 1989 (NSW).' 'Whether a work order or a money order should be made having regard to s 48MA of the Home Building Act 1989 (NSW).' 'What amount represented the reasonable cost of rectifying the defective work.' 'Whether the applicant should have an order for costs.']

Ratio Decidendi

The Tribunal had jurisdiction because the application was commenced within six years of completion of the work and the defects were major defects. The uncontested expert and photographic evidence established defects in waterproofing and structural elements that breached the statutory warranties in s 18B of the Home Building Act 1989 (NSW). A work order was inappropriate because the respondent was no longer licensed and, in any event, its non-participation and failure to acknowledge the defects meant there could be no confidence it would rectify the work properly. The expert estimates of $36,542 and $23,970 represented reasonable rectification costs, so the applicant was entitled to a...

Court Disposition

Application allowed; money order and costs order made for the applicant.

Orders

  • ['Visual Building Construction Pty Ltd (the respondent) must pay Moreno Martignago (the applicant) the sum of $60,512 within 14 days of the date of this order.' "The respondent is to pay the applicant's costs of the proceeding on the ordinary basis, as agreed or assessed."]