Rich v Fair Trading Administration Corporation [2000] NSWFTT 10

Rich v Fair Trading Administration Corporation [2000] NSWFTT 10

The external single skin Hebel walls served both an essential supporting structural purpose and a substantial functional purpose essential to habitability. The Tribunal preferred the Applicant's expert evidence because the Respondent's expert opinions were based on assumptions later shown to be unfounded, including assumptions about ordinary Hebel construction and compliance with Lite Brick design data. The cracking to the external walls was caused by the faulty construction and inadequate stressing of the walls and rendered the walls inadequate both for habitability purposes and for their structural purpose. The tie down rod and top plate defects identified by Mr Rendell were inherent...

Jurisdiction
Australia
Judgment Date
23 November 2000
Procedural Posture
Appeal Against the Decline of an Insurance Claim Under the Building Services Corporation Comprehensive Insurance Scheme / Primary Application; Findings Made and Application Listed for Further Directions
Outcome
The Tribunal found that the external wall cracking and the defects in stressing the walls were major structural defects, found the internal wall cracking to be general defects, and directed the application be listed for a telephone directions hearing for further conduct of the application.
Legal Topics
['building Services Corporation Comprehensive Insurance Scheme' 'major Structural Defects' 'general Defects' 'time Limits for Insurance Claims' 'jurisdiction of the Fair Trading Tribunal' 'expert Evidence' 'single Skin Wall Construction']
['home Building' 'fair Trading' 'residential Building Insurance' 'administrative Review'] ['building Services Corporation Comprehensive Insurance Scheme' 'major Structural Defects' 'general Defects' 'time Limits for Insurance Claims' 'jurisdiction of the Fair Trading Tribunal' 'expert Evidence' 'single Skin Wall Construction']

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

Appeal Against the Decline of an Insurance Claim Under the Building Services Corporation Comprehensive Insurance Scheme / Primary Application; Findings Made and Application Listed for Further Directions

Legal Issues

  1. 1 ["Whether the defects identified in Mr Rendell's 3 October 2000 report formed part of the original claim or a separate second claim." 'Whether the cracking in the external walls constituted a major structural defect within clause 31 of the Building Services Corporation Regulation 1990.' 'Whether defects in stressing the walls by means of tie down rods and top plates constituted a major structural defect.' 'Whether the cracking in the internal walls constituted major structural defects or general defects.' 'Whether any extension of time issue needed to be determined.']

Ratio Decidendi

The external single skin Hebel walls served both an essential supporting structural purpose and a substantial functional purpose essential to habitability. The Tribunal preferred the Applicant's expert evidence because the Respondent's expert opinions were based on assumptions later shown to be unfounded, including assumptions about ordinary Hebel construction and compliance with Lite Brick design data. The cracking to the external walls was caused by the faulty construction and inadequate stressing of the walls and rendered the walls inadequate both for habitability purposes and for their structural purpose. The tie down rod and top plate defects identified by Mr Rendell were inherent...

Court Disposition

The Tribunal found that the external wall cracking and the defects in stressing the walls were major structural defects, found the internal wall cracking to be general defects, and directed the application be listed for a telephone directions hearing for further conduct of the application.

Orders

  • ['I find that the cracking to the external walls is a major structural defect under sub-clause (b) of the definition of major structural defect in Clause 31of the Building Services Corporation Regulation 1990. Those defects are both inherent from the manner in which the walls and the house were constructed and...