Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 163

Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 163

The Appeal Panel held that the issue of an interim occupation certificate does not create an irrebuttable presumption of compliance with the Building Code of Australia, nor does it preclude a challenge under the statutory warranties of the Home Building Act 1989 (NSW). The Tribunal was entitled to find, based on the evidence, that the Biowood attachments constituted an undue risk of fire spread via the façade, failed to comply with the BCA, and thus breached statutory warranties as to compliance with law, suitability and fitness for purpose. The appeal was dismissed and the original orders were affirmed.

Jurisdiction
Australia
Judgment Date
04 August 2020
Procedural Posture
Appeal / Appeal From Consumer & Commercial Division Decision
Outcome
Appeal dismissed; orders at first instance affirmed
Legal Topics
['statutory Warranty' 'building Code Compliance' 'occupation Certificates' 'fire Safety' 'fitness for Purpose' 'collateral Attack' 'interpretation of Building Code of Australia']
['building and Construction' 'strata Title' 'administrative Law'] ['statutory Warranty' 'building Code Compliance' 'occupation Certificates' 'fire Safety' 'fitness for Purpose' 'collateral Attack' 'interpretation of Building Code of Australia']

Case Brief

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Procedural Posture

Appeal / Appeal From Consumer & Commercial Division Decision

Legal Issues

  1. 1 ['Does the issue of an interim occupation certificate (IOC) create an irrebuttable presumption of Building Code of Australia (BCA) compliance?' "Whether the attachment of 'Biowood' to the external walls constituted an undue risk of fire spread via the building façade under the BCA and breached statutory warranties in Home Building Act 1989 (NSW)?" 'Was the building work done in accordance with all applicable laws, using materials suitable and fit for the specified purpose?']

Ratio Decidendi

The Appeal Panel held that the issue of an interim occupation certificate does not create an irrebuttable presumption of compliance with the Building Code of Australia, nor does it preclude a challenge under the statutory warranties of the Home Building Act 1989 (NSW). The Tribunal was entitled to find, based on the evidence, that the Biowood attachments constituted an undue risk of fire spread via the façade, failed to comply with the BCA, and thus breached statutory warranties as to compliance with law, suitability and fitness for purpose. The appeal was dismissed and the original orders were affirmed.

Court Disposition

Appeal dismissed; orders at first instance affirmed

Orders

  • ['Appeal dismissed' 'Orders made by the Tribunal at first instance are affirmed' 'If parties dispute the date for compliance with order 1, the matter may be relisted for determination as to compliance date' 'Stay of orders 1 and 2 granted on 20 December 2019 is lifted' 'If Respondent seeks costs of the appeal,...