Owners of Strata Plan 41100 v Pender & Sons Pty Ltd [2009] NSWDC 59

Owners of Strata Plan 41100 v Pender & Sons Pty Ltd [2009] NSWDC 59

The Tribunal correctly construed the contract as requiring the builder only to perform the specified works detailed in the Jeffery & Katauskas Report, not to achieve a particular result. No error of law was established in the Tribunal's approach or findings. Further, the Tribunal's unchallenged finding of fact that the owners had not proved the cause of the further cracking independently resolved the proceedings, rendering any appeal academic or futile even if a legal error in construction had been made.

Parties
Plaintiff: Owners of Strata Plan 41100; First Defendant: Pender & Sons Pty Limited; Second Defendant: Vero Insurance Limited; Third Defendant: Consumer, Trader and Tenancy Tribunal
Jurisdiction
Australia
Judgment Date
15 April 2009
Procedural Posture
Civil Appeal / Appeal From Consumer, Trader and Tenancy Tribunal to District Court
Outcome
Appeal dismissed
Legal Topics
Appeals on Questions of Law, Statutory Warranties in Building Contracts, Interpretation of Construction Contracts, Futility of Appeal, Scope of Building Works
Contract Law Building and Construction Law Civil Procedure Appeals on Questions of Law Statutory Warranties in Building Contracts Interpretation of Construction Contracts Futility of Appeal Scope of Building Works

Case Brief

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Parties

Owners of Strata Plan 41100

Plaintiff

Pender & Sons Pty Limited

First Defendant

Vero Insurance Limited

Second Defendant

Consumer, Trader and Tenancy Tribunal

Third Defendant

Procedural Posture

Civil Appeal / Appeal From Consumer, Trader and Tenancy Tribunal to District Court

Legal Issues

  1. 1 Whether the Tribunal erred in its construction of the contract between the plaintiff and the builder as to its scope and characterisation
  2. 2 Whether the Tribunal incorrectly took account of subjective beliefs or documents not forming part of the contract
  3. 3 Whether the statutory warranty under s 18B(f) of the Home Building Act 1989 applies

Ratio Decidendi

The Tribunal correctly construed the contract as requiring the builder only to perform the specified works detailed in the Jeffery & Katauskas Report, not to achieve a particular result. No error of law was established in the Tribunal's approach or findings. Further, the Tribunal's unchallenged finding of fact that the owners had not proved the cause of the further cracking independently resolved the proceedings, rendering any appeal academic or futile even if a legal error in construction had been made.

Court Disposition

Appeal dismissed

Orders

  • Appeal is dismissed; parties to be heard on costs before final orders are made.