The Owners SP 78035 v Banksia Development Group Pty Ltd, Nadim Moujalli, Wilhemina Maria Moujalli, Karin Ambrosius [2014] NSWCATCD 18

The Owners SP 78035 v Banksia Development Group Pty Ltd, Nadim Moujalli, Wilhemina Maria Moujalli, Karin Ambrosius [2014] NSWCATCD 18

The respondents, as builder and developers, are jointly and severally liable to the Owners Corporation for breach of statutory warranties under the Home Building Act. The applicant proved the reasonable costs of necessary rectification by expert and factual evidence and is awarded the maximum recoverable sum under the Tribunal's jurisdiction. Costs are also awarded on the statutory and discretionary bases outlined.

Parties
Applicant: The Owners SP 78035; First Respondent: Banksia Development Group Pty Ltd; Second Respondent: Nadim Moujalli; Third Respondent: Wilhemina Maria Moujalli; Fourth Respondent: Karin Ambrosius
Jurisdiction
Australia
Judgment Date
17 January 2014
Procedural Posture
Damages Claim for Building Defects / Principal Judgment After Final Hearing (ex Parte Against Respondents)
Outcome
Application allowed; damages and costs awarded
Legal Topics
Statutory Warranties Under Home Building Act, Damages for Building Defects, Jurisdictional Limit of Tribunal, Costs—the Power to Award, Rectification of Defects
Strata Law Building and Construction Law Consumer Law Statutory Warranties Under Home Building Act Damages for Building Defects Jurisdictional Limit of Tribunal Costs—the Power to Award Rectification of Defects

Case Brief

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Parties

The Owners SP 78035

Applicant

Banksia Development Group Pty Ltd

First Respondent

Nadim Moujalli

Second Respondent

Wilhemina Maria Moujalli

Third Respondent

Karin Ambrosius

Fourth Respondent

Procedural Posture

Damages Claim for Building Defects / Principal Judgment After Final Hearing (ex Parte Against Respondents)

Legal Issues

  1. 1 Are the respondents liable for statutory warranties under the Home Building Act?
  2. 2 Is the applicant entitled to damages for building defects?
  3. 3 Are overhead, margin, contingency and superintendence recoverable heads of damage?

Ratio Decidendi

The respondents, as builder and developers, are jointly and severally liable to the Owners Corporation for breach of statutory warranties under the Home Building Act. The applicant proved the reasonable costs of necessary rectification by expert and factual evidence and is awarded the maximum recoverable sum under the Tribunal's jurisdiction. Costs are also awarded on the statutory and discretionary bases outlined.

Court Disposition

Application allowed; damages and costs awarded

Orders

  • The respondents Banksia Development Group Pty Ltd, Nadim Moujalli, Wilhemina Maria Moujalli and Karin Ambrosius are to pay to the Owners Strata Plan 78035 $500,000.00 within 28 days of this order.
  • In addition the respondents are to pay to the applicants costs of and incidental to the proceedings as agreed or as assessed within 28 days of this order.