The Owners – Strata Plan 83572 v Jackson Teece Chesterman Willis Pty Ltd [2019] NSWSC 942

The Owners – Strata Plan 83572 v Jackson Teece Chesterman Willis Pty Ltd [2019] NSWSC 942

The Owners Corporation failed to prove that Mr Neumann's application of sealant to the expressed façade joints was performed without due care and skill or that any loss resulted from that work. Mr Neumann's engagement was to do the work instructed by Cyre Group, and he did not warrant that the work would make the façade waterproof or water resistant; he had expressly warned in writing that the proposed work was only remedial external patching and that the best solution was to replace sheets and install correct head flashings. In any event, Cyre Group instructed the work contrary to that written advice, giving Mr Neumann a defence under s 18F of the Home Building Act 1989 (NSW).

Jurisdiction
Australia
Judgment Date
25 July 2019
Procedural Posture
Equity Technology and Construction List; Building and Construction Claim Concerning Residential Building Work and Statutory Warranties / Principal Judgment After Hearing
Outcome
Proceedings dismissed with costs
Legal Topics
['residential Building Work' 'statutory Warranties' 'due Care and Skill' 'remedial Work to Leaking Façade' 'defence Under S 18 F of the Home Building Act 1989 (nsw)' 'causation and Loss']
['building and Construction' 'home Building' 'strata Property'] ['residential Building Work' 'statutory Warranties' 'due Care and Skill' 'remedial Work to Leaking Façade' 'defence Under S 18 F of the Home Building Act 1989 (nsw)' 'causation and Loss']

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Procedural Posture

Equity Technology and Construction List; Building and Construction Claim Concerning Residential Building Work and Statutory Warranties / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Owners Corporation established that the remedial façade work performed by Mr Neumann breached the warranty implied by s 18B of the Home Building Act 1989 (NSW) that the work would be done with due care and skill.' 'Whether Mr Neumann warranted, represented or agreed that the application of sealant would render the façade waterproof or water resistant.' "Whether any loss was shown to have resulted from Mr Neumann's work." 'Whether Mr Neumann had a defence under s 18F of the Home Building Act 1989 (NSW) because Cyre Group instructed him to carry out work contrary to his written advice.']

Ratio Decidendi

The Owners Corporation failed to prove that Mr Neumann's application of sealant to the expressed façade joints was performed without due care and skill or that any loss resulted from that work. Mr Neumann's engagement was to do the work instructed by Cyre Group, and he did not warrant that the work would make the façade waterproof or water resistant; he had expressly warned in writing that the proposed work was only remedial external patching and that the best solution was to replace sheets and install correct head flashings. In any event, Cyre Group instructed the work contrary to that written advice, giving Mr Neumann a defence under s 18F of the Home Building Act 1989 (NSW).

Court Disposition

Proceedings dismissed with costs

Orders

  • ['Proceedings dismissed with costs']