Miguel Ocana and Johanna Ocana v Roche Constructions Pty Ltd [2014] NSWCATCD 85

Miguel Ocana and Johanna Ocana v Roche Constructions Pty Ltd [2014] NSWCATCD 85

The homeowners failed to prove to the required standard that the extension had to be demolished and rebuilt. The Tribunal preferred the builder's evidence that the homeowners knew of and agreed to the cost-saving method of building off the existing slabs. Although defects and incomplete works were identified, the expert evidence did not establish that demolition and rebuilding was necessary, and the homeowners sought no alternative quantified relief for rectification. The application as framed was therefore dismissed.

Jurisdiction
Australia
Judgment Date
10 June 2014
Procedural Posture
Home Building Dispute Concerning Residential Building Work Under the Home Building Act 1989 / Principal Judgment After Hearing
Outcome
The homeowners' application is dismissed.
Legal Topics
['residential Building Work' 'building Defects' 'bca Compliance' 'subfloor Clearance' 'demolition and Rebuild Claim' 'variations' 'quantum Meruit' 'tribunal Jurisdiction']
['home Building' 'consumer and Tribunal Law' 'building and Construction'] ['residential Building Work' 'building Defects' 'bca Compliance' 'subfloor Clearance' 'demolition and Rebuild Claim' 'variations' 'quantum Meruit' 'tribunal Jurisdiction']

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Procedural Posture

Home Building Dispute Concerning Residential Building Work Under the Home Building Act 1989 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the extension works were so non-compliant with the BCA and foundation requirements that the appropriate remedy was demolition and rebuilding afresh.' 'Whether the homeowners knew of and instructed the builder to build off the existing slabs as a cost-saving method rather than follow the Zahoul Engineering plans requiring removal of slabs and excavated piers.' 'Whether the identified defects and incomplete works were capable of rectification rather than requiring demolition and rebuilding.' "Whether the builder's asserted quantum meruit claim for variations could be considered without sufficient evidence of reasonableness and without a formal cross-claim."]

Ratio Decidendi

The homeowners failed to prove to the required standard that the extension had to be demolished and rebuilt. The Tribunal preferred the builder's evidence that the homeowners knew of and agreed to the cost-saving method of building off the existing slabs. Although defects and incomplete works were identified, the expert evidence did not establish that demolition and rebuilding was necessary, and the homeowners sought no alternative quantified relief for rectification. The application as framed was therefore dismissed.

Court Disposition

The homeowners' application is dismissed.

Orders

  • ["That the homeowners' application is dismissed." "That the builder's submission in relation to costs be filed and served by 6 July 2014." 'That any reply submission on costs by the homeowners be filed and served by 3 August 2014.']