Sills v Banks & Ors [2022] NSWCATCD 148

Sills v Banks & Ors [2022] NSWCATCD 148

The applicant failed to establish, on the balance of probabilities, that there was a major defect in the works as constructed. The expert evidence was uncertain, and there was insufficient admissible evidence proving a defect in the bond beam or a breach of statutory warranties. The Tribunal preferred the respondents' expert evidence that any settlement was due to natural soil conditions, not defective work, and that the bond beam as constructed was not defective under the Act.

Jurisdiction
Australia
Judgment Date
05 September 2022
Procedural Posture
Home Building Defects Claim / Final Hearing and Determination
Outcome
Application dismissed
Legal Topics
['statutory Warranties' 'building Defects' 'costs']
['home Building' 'consumer Law'] ['statutory Warranties' 'building Defects' 'costs']

Case Brief

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Procedural Posture

Home Building Defects Claim / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the pool construction contains a major defect under the Home Building Act 1989' 'Whether the builder breached statutory warranties under s18B of the Home Building Act 1989' 'Whether evidence establishes defective work requiring pool replacement']

Ratio Decidendi

The applicant failed to establish, on the balance of probabilities, that there was a major defect in the works as constructed. The expert evidence was uncertain, and there was insufficient admissible evidence proving a defect in the bond beam or a breach of statutory warranties. The Tribunal preferred the respondents' expert evidence that any settlement was due to natural soil conditions, not defective work, and that the bond beam as constructed was not defective under the Act.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.' "The applicant shall pay the respondent's costs of and incidental to the proceedings as agreed or assessed on the ordinary basis." 'If the parties apply for a cost order other than the one in order (2) above within 7 days of the orders being published, order (2) above ceases to have...