The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and Frasers Putney Pty Ltd [2019] NSWCATCD 63

The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and Frasers Putney Pty Ltd [2019] NSWCATCD 63

The Tribunal was not bound by the interim occupation certificate and could determine BCA compliance. It preferred Expert Halstead's evidence, supported by the CSIRO material, that Biowood was combustible, not exempted under C1.10 and created an undue risk of fire spread via the façade of a Type A multi-storey residential building. The Biowood attachments, including on spandrels, did not comply with BCA Specification C1.1 clause 2.4 and were not fit for purpose. Their use breached the statutory warranties in section 18B(1)(b), (c) and (f) of the Home Building Act 1989, entitling the applicant to rectification orders.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Home Building Act 1989 Building Claim Concerning Alleged Defective Residential Building Work / Principal Judgment After Hearing on Liability for Major Defects and Remedy
Outcome
Application successful; rectification and costs ordered against the respondents.
Legal Topics
['statutory Warranties' 'combustible Cladding' 'building Code of Australia Compliance' 'fitness for Purpose' 'interim Occupation Certificate' 'rectification Orders' 'costs']
['building and Construction' 'home Building' 'consumer and Commercial' 'strata'] ['statutory Warranties' 'combustible Cladding' 'building Code of Australia Compliance' 'fitness for Purpose' 'interim Occupation Certificate' 'rectification Orders' 'costs']

Case Brief

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Procedural Posture

Home Building Act 1989 Building Claim Concerning Alleged Defective Residential Building Work / Principal Judgment After Hearing on Liability for Major Defects and Remedy

Legal Issues

  1. 1 ['Whether the Biowood attachments as installed were compliant with applicable codes and standards, including the Building Code of Australia.' 'Whether, even if compliant with codes and standards, the Biowood as installed was a material fit for purpose.' 'Whether the issue of an interim occupation certificate prevented the Tribunal from determining BCA compliance.' 'Whether the Biowood attachments constituted an undue risk of fire spread via the façade of the building.' 'Whether the use of Biowood breached statutory warranties under section 18B(1)(b), (c) and (f) of the Home Building Act 1989.']

Ratio Decidendi

The Tribunal was not bound by the interim occupation certificate and could determine BCA compliance. It preferred Expert Halstead's evidence, supported by the CSIRO material, that Biowood was combustible, not exempted under C1.10 and created an undue risk of fire spread via the façade of a Type A multi-storey residential building. The Biowood attachments, including on spandrels, did not comply with BCA Specification C1.1 clause 2.4 and were not fit for purpose. Their use breached the statutory warranties in section 18B(1)(b), (c) and (f) of the Home Building Act 1989, entitling the applicant to rectification orders.

Court Disposition

Application successful; rectification and costs ordered against the respondents.

Orders

  • ['The respondents, Taylor Construction Group Pty Ltd and Fraser Putney Pty Ltd, rectify the breach of the statutory warranties in section 18B(1)(b), (c), (e) and (f) of the Home Building Act, by removing the Biowood attachments installed on the façade of 3 & 5 Lardelli Drive Ryde, New South Wales and replacing...