Owners Strata Plan 78465 -v- M D Constructions Pty Ltd [2016] NSWSC 162

Owners Strata Plan 78465 -v- M D Constructions Pty Ltd [2016] NSWSC 162

The amendment changing the particulars of defects from references to the Moisidis Reports to references to the Cornerstone Report was only a change in the form of particulars identifying the same defects, not the commencement of new proceedings for breach of statutory warranty under s 18E(1)(a). The defendant also failed to prove that the plaintiff acted unreasonably in not allowing it to rectify the defects, given the systemic defects, prior unsuccessful repair attempts, the defendant's unwillingness to accept responsibility and the absence of a realistic prospect that it would agree to and perform an adequate scope of rectification. Accordingly the plaintiff was entitled to damages...

Jurisdiction
Australia
Judgment Date
19 February 2016
Procedural Posture
Claim for Damages for Breach of Statutory Warranties Under the Home Building Act 1989 (nsw) in Respect of Defective Residential Building Work / Principal Judgment After Hearing in the Supreme Court of New South Wales, Equity Technology and Construction List; Proceedings Had Been Commenced in the CTTT and Transferred to the District Court and Then to This Court
Outcome
Judgment for the plaintiff against the defendant in the amount of $577,490.66; defendant to pay plaintiff's costs on the specified footing.
Legal Topics
['statutory Warranties' 'defective Building Work' 'limitation Period Under S 18 E(1)(a)' 'amendment of Pleadings and Particulars' 'mitigation of Damages' 'rectification of Defects']
['building and Construction' 'home Building' 'civil Procedure' 'damages'] ['statutory Warranties' 'defective Building Work' 'limitation Period Under S 18 E(1)(a)' 'amendment of Pleadings and Particulars' 'mitigation of Damages' 'rectification of Defects']

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Procedural Posture

Claim for Damages for Breach of Statutory Warranties Under the Home Building Act 1989 (nsw) in Respect of Defective Residential Building Work / Principal Judgment After Hearing in the Supreme Court of New South Wales, Equity Technology and Construction List; Proceedings Had Been Commenced in the CTTT and Transferred to the District Court and Then to This Court

Legal Issues

  1. 1 ['Whether changing particulars of alleged defects from the Moisidis Reports to the Cornerstone Report constituted the commencement of new proceedings for the purpose of s 18E(1)(a) of the Home Building Act 1989 (NSW).' 'Whether the plaintiff failed to mitigate its damages by refusing to allow the defendant the opportunity to arrange rectification of the alleged defects.' 'Whether the Court should give a money verdict or instead order the defendant to rectify the defects itself.']

Ratio Decidendi

The amendment changing the particulars of defects from references to the Moisidis Reports to references to the Cornerstone Report was only a change in the form of particulars identifying the same defects, not the commencement of new proceedings for breach of statutory warranty under s 18E(1)(a). The defendant also failed to prove that the plaintiff acted unreasonably in not allowing it to rectify the defects, given the systemic defects, prior unsuccessful repair attempts, the defendant's unwillingness to accept responsibility and the absence of a realistic prospect that it would agree to and perform an adequate scope of rectification. Accordingly the plaintiff was entitled to damages...

Court Disposition

Judgment for the plaintiff against the defendant in the amount of $577,490.66; defendant to pay plaintiff's costs on the specified footing.

Orders

  • ['Judgment for the plaintiff against the defendant in the sum of $577,490.66.' "The defendant is to pay the plaintiff's costs of the proceedings to be assessed on the footing that they have continued in the District Court and the plaintiff will not be entitled to recover any costs from the defendant in connection...