Clements v Murphy [2018] NSWCATAP 152

Clements v Murphy [2018] NSWCATAP 152

Section 48MA does not apply to incomplete work; following contract termination, a builder has no right to complete the incomplete works. The Tribunal appropriately ordered compensation rather than rectification of incomplete work, and contractual compliance required double glazing as specified in the original BASIX certificate.

Jurisdiction
Australia
Judgment Date
20 June 2018
Procedural Posture
Civil Appeal / Appeal Panel Decision
Outcome
Application for leave to appeal refused; appeal dismissed
Legal Topics
['home Building' 'rectification of Defective Work' 'contract Termination' 'costs']
['building and Construction'] ['home Building' 'rectification of Defective Work' 'contract Termination' 'costs']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Does section 48MA of the Home Building Act 1989 (NSW) apply to incomplete work?' 'Should the builder be ordered to complete incomplete work after contract termination?' 'Did the Tribunal err in considering compliance with BASIX certificates regarding glazing?']

Ratio Decidendi

Section 48MA does not apply to incomplete work; following contract termination, a builder has no right to complete the incomplete works. The Tribunal appropriately ordered compensation rather than rectification of incomplete work, and contractual compliance required double glazing as specified in the original BASIX certificate.

Court Disposition

Application for leave to appeal refused; appeal dismissed

Orders

  • ['Application for leave to appeal refused' 'Appeal dismissed' 'Either party may file written submissions within 14 days seeking an order in relation to the costs of the proceedings' 'If either party files submissions in accordance with order (3), the other party may file submissions in response within a further 14...