Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304

Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304

The plaintiffs failed to prove, on the balance of probabilities, that TQM completed the allegedly defective work or caused the claimed loss. Where compensation for defects had already been received from the developer's home building insurer by way of settlement, any concurrent claim against TQM would constitute double compensation and is not permissible. Consequently, the claims against TQM failed.

Jurisdiction
Australia
Judgment Date
23 August 2018
Procedural Posture
Building and Construction Dispute / Final Judgment After Trial
Outcome
Proceedings dismissed
Legal Topics
['statutory Warranties' 'defective Work' 'causation' 'double Compensation' 'successors in Title' 'security of Payment']
['building and Construction Law' 'contract Law' 'equity'] ['statutory Warranties' 'defective Work' 'causation' 'double Compensation' 'successors in Title' 'security of Payment']

Case Brief

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Procedural Posture

Building and Construction Dispute / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether TQM Design & Construct Pty Ltd performed defective building work in breach of statutory warranties under ss 18B and 18D of the Home Building Act 1989 (NSW)' 'Whether plaintiffs proved TQM completed the defective plasterboarding, air conditioning, and acoustic works' "Whether plaintiffs' claimed losses were caused by TQM's work" "Whether compensation already received from developer's insurer prevents further recovery (double compensation)"]

Ratio Decidendi

The plaintiffs failed to prove, on the balance of probabilities, that TQM completed the allegedly defective work or caused the claimed loss. Where compensation for defects had already been received from the developer's home building insurer by way of settlement, any concurrent claim against TQM would constitute double compensation and is not permissible. Consequently, the claims against TQM failed.

Court Disposition

Proceedings dismissed

Orders

  • ['Proceedings are dismissed.' "Plaintiffs are to pay TQM's costs of the proceedings, subject to any application for a different order by 12 noon 30 August 2018." 'The exhibits are to be returned.']