Murphy v Zubkrycki & Anor [2020] NSWDC 538

Murphy v Zubkrycki & Anor [2020] NSWDC 538

On the balance of probabilities, the builder constructed the side retaining wall as part of the residential building work. The wall's collapse constituted a breach of statutory warranties under the Home Building Act 1989 (NSW). The owner, as beneficiary, is entitled to rectification damages but only for the reasonable and necessary works as per engineering drawings supplied in July 2017, not for more extensive or improved works. The owner is also entitled to $5,000 for distress and inconvenience attributable to the physical consequences of the collapse.

Parties
Plaintiff: Ms K Murphy; First Defendant: Mr C M Zubrycki; Second Defendant: Ms I B Zubrycki
Jurisdiction
Australia
Judgment Date
17 September 2020
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the plaintiff on liability; quantum of rectification costs to be referred unless agreed.
Legal Topics
Implied Statutory Warranties, Residential Building Work, Damages for Defective Works, Rectification Damages, Distress and Inconvenience in Contract Claims
Contract Law Building and Construction Law Implied Statutory Warranties Residential Building Work Damages for Defective Works Rectification Damages Distress and Inconvenience in Contract Claims

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Parties

Ms K Murphy

Plaintiff

Mr C M Zubrycki

First Defendant

Ms I B Zubrycki

Second Defendant

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 Whether the builder constructed the side retaining wall
  2. 2 Whether the wall constituted 'residential building work' under the Home Building Act 1989 (NSW)
  3. 3 Responsibility for rectification costs for defective construction

Ratio Decidendi

On the balance of probabilities, the builder constructed the side retaining wall as part of the residential building work. The wall's collapse constituted a breach of statutory warranties under the Home Building Act 1989 (NSW). The owner, as beneficiary, is entitled to rectification damages but only for the reasonable and necessary works as per engineering drawings supplied in July 2017, not for more extensive or improved works. The owner is also entitled to $5,000 for distress and inconvenience attributable to the physical consequences of the collapse.

Court Disposition

Judgment for the plaintiff on liability; quantum of rectification costs to be referred unless agreed.

Orders

  • Builder liable for breach of statutory warranties for construction of side retaining wall.
  • Damages for rectification costs limited to scope of Residential Engineering drawings of July 2017, quantum to be referred if not agreed.