Salcap Property Holdings Pty Ltd v JSquared Projects Pty Ltd [2024] NSWCATCD 45

Salcap Property Holdings Pty Ltd v JSquared Projects Pty Ltd [2024] NSWCATCD 45

The builder, as contractor under the original building contract, is liable to the successor in title for breach of statutory warranties under s 18B and s 18D of the Home Building Act 1989 (NSW), irrespective of who physically performed the work. The majority of the alleged defects were established as 'major defects', and therefore within time for rectification orders. The evidence supported work orders (not a money order) as the appropriate remedy given no compelling reason to displace the statutory preference. Orders were made requiring the builder to carry out specified rectification works.

Parties
Applicant: Salcap Property Holdings Pty Ltd; Respondent: JSquared Projects Pty Ltd
Jurisdiction
Australia
Judgment Date
04 June 2024
Procedural Posture
Building Dispute / Statutory Warranties / Final Determination and Orders
Outcome
Orders made: application substantially dismissed except for rectification work ordered; question of costs reserved for further submissions.
Legal Topics
Home Building Act 1989 (nsw), Statutory Warranties, Defective Building Work, Work Orders, Successor in Title, Major Defects, Tribunal Powers
Building and Construction Law Consumer Law Home Building Act 1989 (nsw) Statutory Warranties Defective Building Work Work Orders Successor in Title Major Defects +1 more

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Parties

Salcap Property Holdings Pty Ltd

Applicant

JSquared Projects Pty Ltd

Respondent

Procedural Posture

Building Dispute / Statutory Warranties / Final Determination and Orders

Legal Issues

  1. 1 Whether the builder is liable for statutory warranties to a successor in title under s 18B and s 18D of the Home Building Act 1989 (NSW)
  2. 2 Whether the claimed defects are 'major defects' and thus within time for relief
  3. 3 Identification and rectification of defective works: waterproofing, external walls, balconies, wet areas, mould remediation, floor framing

Ratio Decidendi

The builder, as contractor under the original building contract, is liable to the successor in title for breach of statutory warranties under s 18B and s 18D of the Home Building Act 1989 (NSW), irrespective of who physically performed the work. The majority of the alleged defects were established as 'major defects', and therefore within time for rectification orders. The evidence supported work orders (not a money order) as the appropriate remedy given no compelling reason to displace the statutory preference. Orders were made requiring the builder to carry out specified rectification works.

Court Disposition

Orders made: application substantially dismissed except for rectification work ordered; question of costs reserved for further submissions.

Orders

  • Within 14 weeks the respondent is to carry out the works specified in the attached Schedule in a proper and workmanlike manner.
  • The application is otherwise dismissed.