Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 [2021] NSWSC 1315

Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 [2021] NSWSC 1315

The appeal was dismissed because the Appeal Panel did not err in law in its formulation or application of the test for 'undue risk' under clause 2.4(a)(iii) of Specification C1.1 of the BCA. The finding that Biowood cladding posed an undue risk of fire spread via the façade and thus did not comply with the BCA was supported on the evidence and by appropriate reasoning. Consequently, the statutory warranties under s 18B(1)(b), (c), and (f) of the Home Building Act 1989 (NSW) were breached. The grounds of appeal were not established.

Parties
First Plaintiff: Taylor Construction Group Pty Ltd (ACN 067 428 344); Second Plaintiff: Frasers Putney Pty Limited; Defendant: Strata Plan 92888 trading as The Owners – Strata Plan 92888
Jurisdiction
Australia
Judgment Date
18 October 2021
Procedural Posture
Appeal / Supreme Court of NSW Decision on Leave to Appeal and Substantive Appeal From NCAT Appeal Panel
Outcome
Appeal dismissed after leave granted
Legal Topics
Appeal From Tribunal, Statutory Warranties, Building Code of Australia Compliance, Undue Risk of Fire, Combustible Cladding, Fitness for Purpose, Interpretation of Building Code
Administrative Law Building and Construction Law Appeal From Tribunal Statutory Warranties Building Code of Australia Compliance Undue Risk of Fire Combustible Cladding Fitness for Purpose +1 more

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Parties

Taylor Construction Group Pty Ltd (ACN 067 428 344)

First Plaintiff

Frasers Putney Pty Limited

Second Plaintiff

Strata Plan 92888 trading as The Owners – Strata Plan 92888

Defendant

Procedural Posture

Appeal / Supreme Court of NSW Decision on Leave to Appeal and Substantive Appeal From NCAT Appeal Panel

Legal Issues

  1. 1 Whether Biowood cladding complies with the Building Code of Australia (BCA) and statutory warranties under the Home Building Act 1989 (NSW)
  2. 2 Whether the use of Biowood constitutes an 'undue risk of fire spread' under Clause 2.4(a)(iii) of Specification C1.1 of the BCA
  3. 3 Whether expert evidence supported a finding of undue risk and whether the appropriate test under the BCA was applied

Ratio Decidendi

The appeal was dismissed because the Appeal Panel did not err in law in its formulation or application of the test for 'undue risk' under clause 2.4(a)(iii) of Specification C1.1 of the BCA. The finding that Biowood cladding posed an undue risk of fire spread via the façade and thus did not comply with the BCA was supported on the evidence and by appropriate reasoning. Consequently, the statutory warranties under s 18B(1)(b), (c), and (f) of the Home Building Act 1989 (NSW) were breached. The grounds of appeal were not established.

Court Disposition

Appeal dismissed after leave granted

Orders

  • Leave to appeal granted.
  • Amended summons by First Plaintiff and cross-summons by Second Plaintiff dismissed.