Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2014] NSWCATCD 229

Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2014] NSWCATCD 229

The Tribunal found that Mick Fabar Constructions Pty Ltd breached contract and statutory warranties under the Home Building Act 1989. The owners were entitled to recover damages for rectification of defects in the pergola, internal trims, and water storage tanks according to preferred rectification methodologies, including appropriate allowances for preliminaries, overheads, profit and GST. Less costly repair options offered by the builder were rejected as insufficient to restore contractual conformity.

Jurisdiction
Australia
Judgment Date
25 November 2014
Procedural Posture
Building Claim / Final Determination
Outcome
judgment for applicants
Legal Topics
['breach of Contract' 'statutory Warranties' 'assessment of Damages' 'rectification Methodology' 'mitigation' 'work Orders']
['building and Construction Law' 'consumer Law'] ['breach of Contract' 'statutory Warranties' 'assessment of Damages' 'rectification Methodology' 'mitigation' 'work Orders']

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Procedural Posture

Building Claim / Final Determination

Legal Issues

  1. 1 ['Whether the builder breached the contract and statutory warranties under the Home Building Act 1989' 'Appropriate rectification methodology for defects—pergola, internal trims, and water tanks' 'Assessment of damages and whether costs for preliminaries, overheads and profit should be included']

Ratio Decidendi

The Tribunal found that Mick Fabar Constructions Pty Ltd breached contract and statutory warranties under the Home Building Act 1989. The owners were entitled to recover damages for rectification of defects in the pergola, internal trims, and water storage tanks according to preferred rectification methodologies, including appropriate allowances for preliminaries, overheads, profit and GST. Less costly repair options offered by the builder were rejected as insufficient to restore contractual conformity.

Court Disposition

judgment for applicants

Orders

  • ['Mick Fabar Constructions Pty Ltd must pay Robert Symes and Kim Louise Filmer the sum of $99,304.71 within 14 days of the date of this order.' 'Either party may make a costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 or regulation 20 of the Consumer, Trader and Tenancy...