Keogh v Samchris Pty Ltd [2024] NSWCATCD 32

Keogh v Samchris Pty Ltd [2024] NSWCATCD 32

The Tribunal found major defects existed and the respondent was liable, rejecting the s.18F defence and the design defect defence because the builder did not construct strictly in accordance with the option B drawings, and the drawings were prepared at the builder’s request, not on homeowner instructions. The preferred remedy was a work order for rectification of specified defects, as per s.48MA. The applicants' claim for a refund of variations was dismissed because no clear cause of action was pleaded and the claim was also out of time under s.48K(3), as all works were supplied by May 2019 and proceedings were commenced more than 3 years later.

Parties
First Applicant: Steven John Keogh; Second Applicant: Jacqueline Mary Keogh; Respondent: Samchris Pty Ltd
Jurisdiction
Australia
Judgment Date
08 March 2024
Procedural Posture
Home Building Dispute / Final Determination
Outcome
Orders for rectification made in respect of major defects; application otherwise dismissed; costs in the cause unless further application.
Legal Topics
Statutory Warranties, Major Defects, Rectification Orders, Building Contract Variations, Limitation Periods
Home Building Law Consumer Law Statutory Warranties Major Defects Rectification Orders Building Contract Variations Limitation Periods

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Parties

Steven John Keogh

First Applicant

Jacqueline Mary Keogh

Second Applicant

Samchris Pty Ltd

Respondent

Procedural Posture

Home Building Dispute / Final Determination

Legal Issues

  1. 1 Existence and extent of major and minor defects under the Home Building Act 1989 (NSW)
  2. 2 Whether the respondent can rely on a s.18F defence or design defect defence
  3. 3 Appropriate scope of rectification works

Ratio Decidendi

The Tribunal found major defects existed and the respondent was liable, rejecting the s.18F defence and the design defect defence because the builder did not construct strictly in accordance with the option B drawings, and the drawings were prepared at the builder’s request, not on homeowner instructions. The preferred remedy was a work order for rectification of specified defects, as per s.48MA. The applicants' claim for a refund of variations was dismissed because no clear cause of action was pleaded and the claim was also out of time under s.48K(3), as all works were supplied by May 2019 and proceedings were commenced more than 3 years later.

Court Disposition

Orders for rectification made in respect of major defects; application otherwise dismissed; costs in the cause unless further application.

Orders

  • The respondent must, within six months, rectify Items 1–3, 28, 31, 73 (master bedroom water leak) in accordance with the agreed scope of work plus additional work as set out at CB1755–1757.
  • The respondent must, within six months, rectify Items 4, 5–15, 16–18, 27, 33–68 in accordance with the agreed scope of works at CB1757–1762.