The Owners – Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1134

The Owners – Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1134

The reasonable cost of rectification should be assessed according to the expert evidence of the plaintiff, with adjustments as outlined, including the use of higher costings for certain items where justified, and the adoption of upper-range assessments in case of uncertainty attributable to the defendant. Exceptional circumstances justified granting leave for the second defendant to rely on the late expert report. Parties are to calculate the final sum payable in accordance with these findings.

Parties
Plaintiff: The Owners – Strata Plan 84741; Second Defendant: Iris Diversified Property Pty Ltd; First Defendant: Nazero Constructions Pty Ltd (in liquidation)
Jurisdiction
Australia
Judgment Date
29 August 2017
Procedural Posture
Defect Rectification Claim / Judgment on Quantum After Liability Established
Outcome
Defect rectification costs quantified with details determined; parties to calculate final figure due from second defendant to plaintiff; parties to be heard on final orders and costs.
Legal Topics
Defect Rectification, Statutory Warranties, Expert Evidence, Assessment of Damages, Pre Judgment Interest, Procedural Leave Under UCPR
Building and Construction Equity Defect Rectification Statutory Warranties Expert Evidence Assessment of Damages Pre Judgment Interest Procedural Leave Under UCPR

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Parties

The Owners – Strata Plan 84741

Plaintiff

Iris Diversified Property Pty Ltd

Second Defendant

Nazero Constructions Pty Ltd (in liquidation)

First Defendant

Procedural Posture

Defect Rectification Claim / Judgment on Quantum After Liability Established

Legal Issues

  1. 1 Whether quantification of defect rectification costs is reasonable
  2. 2 Whether plaintiff is entitled to pre-judgment interest
  3. 3 Whether leave should be granted under UCPR r 31.28(3) for second defendant to rely on expert report

Ratio Decidendi

The reasonable cost of rectification should be assessed according to the expert evidence of the plaintiff, with adjustments as outlined, including the use of higher costings for certain items where justified, and the adoption of upper-range assessments in case of uncertainty attributable to the defendant. Exceptional circumstances justified granting leave for the second defendant to rely on the late expert report. Parties are to calculate the final sum payable in accordance with these findings.

Court Disposition

Defect rectification costs quantified with details determined; parties to calculate final figure due from second defendant to plaintiff; parties to be heard on final orders and costs.

Orders

  • Leave granted to second defendant to rely on Mr Madden's report under UCPR r 31.28(3).
  • Rectification costs to be calculated according to reasoning in the judgment, with specific percentages and figures as set out.