Doonan v Ultra Modern Developments Pty Ltd t/as Eagle Homes [2015] NSWCATCD 85

Doonan v Ultra Modern Developments Pty Ltd t/as Eagle Homes [2015] NSWCATCD 85

The respondent's building work breached the statutory warranties in s 18B of the Home Building Act 1989 because it was not performed in a proper and workmanlike manner. The applicants were entitled to compensation measured by the cost of rectification. The Tribunal preferred the respondent's expert's costing methodology and amounts, including a 0.65% Home Owners Warranty Insurance premium for country work, and allowed the Aspect-calculated cost for entry masonry rectification because rendering with Rockcote or equivalent was an adequate remedy. A rectification order was inappropriate because the applicants had lost faith in the respondent after prior Fair Trading rectification processes...

Jurisdiction
Australia
Judgment Date
16 July 2015
Procedural Posture
Building Claim Under the Home Building Act 1989 / Principal Judgment After Hearing
Outcome
Application allowed in part; respondent ordered to pay the applicants $27,727.02 in damages, with costs application directions made.
Legal Topics
['defective Residential Building Work' 'breach of Statutory Warranty' 'rectification Costs' 'home Building Act 1989']
['building and Construction' 'consumer Law'] ['defective Residential Building Work' 'breach of Statutory Warranty' 'rectification Costs' 'home Building Act 1989']

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Procedural Posture

Building Claim Under the Home Building Act 1989 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the respondent breached statutory warranties under s 18B of the Home Building Act 1989 by defective building work.' 'Whether the appropriate remedy was compensation for rectification costs rather than an order permitting the respondent to carry out rectification work.' 'Which expert methodology and costing should be accepted for calculating rectification costs.' 'What rectification cost should be allowed for the defective entry masonry.']

Ratio Decidendi

The respondent's building work breached the statutory warranties in s 18B of the Home Building Act 1989 because it was not performed in a proper and workmanlike manner. The applicants were entitled to compensation measured by the cost of rectification. The Tribunal preferred the respondent's expert's costing methodology and amounts, including a 0.65% Home Owners Warranty Insurance premium for country work, and allowed the Aspect-calculated cost for entry masonry rectification because rendering with Rockcote or equivalent was an adequate remedy. A rectification order was inappropriate because the applicants had lost faith in the respondent after prior Fair Trading rectification processes...

Court Disposition

Application allowed in part; respondent ordered to pay the applicants $27,727.02 in damages, with costs application directions made.

Orders

  • ['The respondent is to pay to the applicants damages in the sum amount $27,727.02 on or before 15 August 2015.' 'Any application for costs is to be in writing to the Tribunal supported by evidence and submissions and is to be filed and served on or before 30 July 2015.' 'Any evidence and submissions in reply from...