Fitzgerald v Waterstop Solutions (NSW) Pty Ltd [2022] NSWCATCD 84

Fitzgerald v Waterstop Solutions (NSW) Pty Ltd [2022] NSWCATCD 84

The applicants, as lot owners, have no standing to bring a claim against the respondent builder in relation to alleged defective work to common property, as they are neither owners of the common property nor delegated by the Owners Corporation. The application is therefore misconceived and must be dismissed.

Parties
First Applicant: Robert Fitzgerald; Second Applicant: Emma Fitzgerald; Respondent: Waterstop Solutions (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
20 June 2022
Procedural Posture
Tribunal Application / Decision on Application, Summary Dismissal
Outcome
Application dismissed as misconceived.
Legal Topics
Statutory Warranties, Standing of Lot Owners, Common Property in Strata Schemes, Summary Dismissal of Proceedings
Building and Construction Strata Law Consumer Law Statutory Warranties Standing of Lot Owners Common Property in Strata Schemes Summary Dismissal of Proceedings

Case Brief

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Parties

Robert Fitzgerald

First Applicant

Emma Fitzgerald

Second Applicant

Waterstop Solutions (NSW) Pty Ltd

Respondent

Procedural Posture

Tribunal Application / Decision on Application, Summary Dismissal

Legal Issues

  1. 1 Whether applicants as lot owners have standing to bring a claim against a builder for alleged defective building work carried out on common property under the Home Building Act 1989 (NSW)
  2. 2 Whether works in question relate to common property or lot property within the strata scheme
  3. 3 Interpretation of statutory warranty and delegation provisions under strata legislation

Ratio Decidendi

The applicants, as lot owners, have no standing to bring a claim against the respondent builder in relation to alleged defective work to common property, as they are neither owners of the common property nor delegated by the Owners Corporation. The application is therefore misconceived and must be dismissed.

Court Disposition

Application dismissed as misconceived.

Orders

  • The application is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the basis that it is misconceived.
  • Any application for costs is to be made with supporting submissions by 4 July 2022.