The Owners - Strata Plan No 80818 v Conquest Constructions (NSW) Pty Ltd [2014] NSWCATCD 77

The Owners - Strata Plan No 80818 v Conquest Constructions (NSW) Pty Ltd [2014] NSWCATCD 77

The application was dismissed because the claimed EFM fees related to work concerning both common property and lot property, the applicant failed to provide evidence enabling the Tribunal to apportion the fees to common property defects, the evidence showed EFM had authority to negotiate and had effectively...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 May 2014
Procedural Posture
Home Building Defects Reimbursement Application / Principal Judgment After Hearing
Outcome
The application is dismissed.
Legal Topics
['statutory Warranties' 'owners Corporation' 'common Property Defects' 'lot Property Defects' "consultants' Fees" 'duty of Care' 'remoteness and Necessity of Damages']
['home Building' 'strata Title' 'negligence' 'damages'] ['statutory Warranties' 'owners Corporation' 'common Property Defects' 'lot Property Defects' "consultants' Fees" 'duty of Care' 'remoteness and Necessity of Damages']

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Procedural Posture

Home Building Defects Reimbursement Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant could recover $15,175.00 paid to Essential Facilities Management Pty Ltd for expert assistance concerning building defects.' "Whether the applicant's claim under statutory warranties under the Home Building Act 1989 (NSW) was limited to expenses concerning common property." 'Whether the respondent owed a duty of care to the applicant extending to the claimed loss.' "Whether the applicant proved what part of EFM's fees related to common property defects rather than lot property defects." "Whether EFM, on behalf of the applicant, had negotiated a position by which recovery of EFM's fees was no longer pressed." 'Whether engaging EFM was a necessary or naturally arising expense recoverable as damages.']

Ratio Decidendi

The application was dismissed because the claimed EFM fees related to work concerning both common property and lot property, the applicant failed to provide evidence enabling the Tribunal to apportion the fees to common property defects, the evidence showed EFM had authority to negotiate and had effectively withdrawn the fee claim, and the applicant did not prove that engaging EFM was a necessary or naturally arising expense recoverable from the respondent.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed']