The Owners – Strata Plan 80867 v Da Silva [2024] NSWDC 263

The Owners – Strata Plan 80867 v Da Silva [2024] NSWDC 263

Mr Da Silva breached his contractual and statutory duty to the Owners Corporation by failing to complete waterproofing works in accordance with the Building Code of Australia and Australian Standards, directly causing water ingress and economic loss. The contract was not varied and the non est factum defence did not apply—the document was signed knowingly and without incapacity. Full damages for rectification were awarded, less amounts already settled.

Parties
Plaintiff: The Owners – Strata Plan 80867; First Defendant: John Da Silva
Jurisdiction
Australia
Judgment Date
05 July 2024
Procedural Posture
Civil / Judgment
Outcome
Judgment for the plaintiff against the first defendant.
Legal Topics
Home Building Act 1989, Contract to Undertake Residential Building Work, Non Est Factum, Oral Variation to Scope of Works, Waterproofing, Statutory Duty of Care, Design and Building Practitioners Act 2020, Compliance With Australian Standard, Compliance With Building Code of Australia
Building and Construction Home Building Act 1989 Contract to Undertake Residential Building Work Non Est Factum Oral Variation to Scope of Works Waterproofing Statutory Duty of Care Design and Building Practitioners Act 2020 +2 more

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Parties

The Owners – Strata Plan 80867

Plaintiff

John Da Silva

First Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether a binding contract existed between the Owners Corporation and Mr Da Silva
  2. 2 Whether the terms of the contract were varied
  3. 3 Whether Mr Da Silva breached the contractual and statutory duties regarding waterproofing and compliance with standards

Ratio Decidendi

Mr Da Silva breached his contractual and statutory duty to the Owners Corporation by failing to complete waterproofing works in accordance with the Building Code of Australia and Australian Standards, directly causing water ingress and economic loss. The contract was not varied and the non est factum defence did not apply—the document was signed knowingly and without incapacity. Full damages for rectification were awarded, less amounts already settled.

Court Disposition

Judgment for the plaintiff against the first defendant.

Orders

  • Judgment for the plaintiff against the first defendant in the sum of $317,707.93.
  • List the matter for directions before me at 9:30 AM on Friday 12 July 2024.