Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233

Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233

Because s 48O of the Home Building Act 1989 (NSW) gives the Tribunal a discretion rather than giving the homeowner a right to a remedy, the doctrine of waiver did not apply. Having regard to the statutory preference for rectification by the responsible party, and because the builder was licensed, willing to return and there was no reason making rectification impractical, unfair or inequitable, a work order was preferable to damages. The homeowner's proposed wholesale reconstruction was not shown to be necessary to rectify the only relevant defect, namely shower recess areas of 850 mm x 850 mm rather than the contracted 900 mm x 900 mm. The limited rectification method described by the...

Jurisdiction
Australia
Judgment Date
08 October 2018
Procedural Posture
Home Building Appeal / Appeal Panel New Hearing on Remedy After Breach of Statutory Warranty Found
Outcome
Work order made against the First Respondent; damages and consequential loss not awarded; costs submissions timetable set.
Legal Topics
['statutory Warranties' 'defective Residential Building Work' 'work Orders' 'rectification Costs' 'consequential Loss' 'waiver' 'costs Submissions']
['home Building' 'consumer and Commercial Law' 'civil Procedure'] ['statutory Warranties' 'defective Residential Building Work' 'work Orders' 'rectification Costs' 'consequential Loss' 'waiver' 'costs Submissions']

Case Brief

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Procedural Posture

Home Building Appeal / Appeal Panel New Hearing on Remedy After Breach of Statutory Warranty Found

Legal Issues

  1. 1 ['Whether the homeowner waived any right she may have to damages.' 'What remedy, if any, was appropriate for the breach of the statutory warranty.' 'Whether the Tribunal should award damages rather than making a work order.' 'Whether the work proposed by the homeowner was necessary to produce conformity with the contract.' 'Whether altering the size of the shower recess areas was unreasonable, impractical, unfair or inequitable.' 'Whether a limited work order was a reasonable course to adopt.' 'Whether the homeowner should be awarded damages for consequential loss.']

Ratio Decidendi

Because s 48O of the Home Building Act 1989 (NSW) gives the Tribunal a discretion rather than giving the homeowner a right to a remedy, the doctrine of waiver did not apply. Having regard to the statutory preference for rectification by the responsible party, and because the builder was licensed, willing to return and there was no reason making rectification impractical, unfair or inequitable, a work order was preferable to damages. The homeowner's proposed wholesale reconstruction was not shown to be necessary to rectify the only relevant defect, namely shower recess areas of 850 mm x 850 mm rather than the contracted 900 mm x 900 mm. The limited rectification method described by the...

Court Disposition

Work order made against the First Respondent; damages and consequential loss not awarded; costs submissions timetable set.

Orders

  • ['The First Respondent, CPD Holdings Pty Ltd t/as The Bathroom Exchange, is to perform the rectification work using suitably licensed tradespersons and with due care and skill at the residence of the Appellant, Thea Petropoulos, on or before 7 weeks from the date of this decision.' 'Remove necessary tiles, bedding...