Chouhan v Morrison Homes Pty Ltd [2021] NSWCATCD 155

Chouhan v Morrison Homes Pty Ltd [2021] NSWCATCD 155

The owners were required to prove on the balance of probabilities that the builder breached clause 39 or clause 40 of the contract, or another relevant contractual obligation. Many alleged defects failed because the owners' evidence, including expert evidence, did not identify a contractual, statutory warranty, Building Code, or plans/specifications breach. Some items were accepted because they were conceded by the builder, supported by expert evidence, or otherwise proven. Because the builder had attended to rectification and wished to remedy defects, and no proper reason was shown to depart from s48MA, rectification by the builder was ordered for the proven or conceded items, together...

Jurisdiction
Australia
Judgment Date
31 December 2021
Procedural Posture
Home Building Defects Claim / Principal Judgment After Hearing
Outcome
The application was allowed in part. The builder was ordered to pay $1,500.00 and to carry out specified rectification and information-provision work, with liberty to the owners to renew if the work was not completed by the ordered date.
Legal Topics
['residential Building Work' 'defects' 'expert Evidence' 'statutory Warranties' 'rectification of Defective Work']
['building and Construction' 'consumer and Commercial'] ['residential Building Work' 'defects' 'expert Evidence' 'statutory Warranties' 'rectification of Defective Work']

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Procedural Posture

Home Building Defects Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Morrison Homes Pty Ltd breached express contractual warranties equivalent to the warranties in s18B(1) of the Home Building Act 1989 (NSW) or other contractual obligations in relation to the defects alleged by the owners.' 'Whether the owners proved the alleged defects and causation on the balance of probabilities by appropriate expert or other evidence.' 'Whether rectification by the builder was the preferred outcome under s48MA of the Home Building Act 1989 (NSW).' 'What monetary adjustment or work orders should be made for defects or incomplete work that were proven, conceded, or accepted.']

Ratio Decidendi

The owners were required to prove on the balance of probabilities that the builder breached clause 39 or clause 40 of the contract, or another relevant contractual obligation. Many alleged defects failed because the owners' evidence, including expert evidence, did not identify a contractual, statutory warranty, Building Code, or plans/specifications breach. Some items were accepted because they were conceded by the builder, supported by expert evidence, or otherwise proven. Because the builder had attended to rectification and wished to remedy defects, and no proper reason was shown to depart from s48MA, rectification by the builder was ordered for the proven or conceded items, together...

Court Disposition

The application was allowed in part. The builder was ordered to pay $1,500.00 and to carry out specified rectification and information-provision work, with liberty to the owners to renew if the work was not completed by the ordered date.

Orders

  • ['Morrison Homes Pty Ltd must pay Preet Chouhan and Harjinder Chouhan $1,500.00 immediately.' 'Not later than 28 February 2022, Morrison Homes Pty Ltd must carry out the work referred to in [143] of the Reasons in accordance with the requirements of that paragraph.' 'Preet Chouhan and Harjinder Chouhan have leave to...