Leung v Alexakis [2018] NSWCATAP 11

Leung v Alexakis [2018] NSWCATAP 11

Section 48MA applies to owner-builders, and the Tribunal's obligation was to consider, not mandatorily apply, the preferred outcome principle that rectification by the responsible party is preferable; the Tribunal failed to exercise its discretion by treating the making of a work order as mandatory, thus the Appeal Panel re-exercised discretion to vary orders to ensure qualified persons carry out the rectification at the respondent's cost.

Jurisdiction
Australia
Judgment Date
05 January 2018
Procedural Posture
Building Claim Appeal / Appeal Decision of Appeal Panel
Outcome
Appeal allowed in part; orders of Tribunal below varied.
Legal Topics
['statutory Warranties' 'owner Builder Liability' 'rectification Orders' 'tribunal Powers' 'statutory Interpretation']
['building and Construction Law' 'consumer Law'] ['statutory Warranties' 'owner Builder Liability' 'rectification Orders' 'tribunal Powers' 'statutory Interpretation']

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Procedural Posture

Building Claim Appeal / Appeal Decision of Appeal Panel

Legal Issues

  1. 1 ['Does s 48MA of the Home Building Act 1989 apply to owner-builders and entitle the Tribunal to order them to rectify defective residential building work for successors in title?' 'Did the Tribunal at first instance properly exercise its discretion and provide adequate reasons for making a rectification order under s 48MA?']

Ratio Decidendi

Section 48MA applies to owner-builders, and the Tribunal's obligation was to consider, not mandatorily apply, the preferred outcome principle that rectification by the responsible party is preferable; the Tribunal failed to exercise its discretion by treating the making of a work order as mandatory, thus the Appeal Panel re-exercised discretion to vary orders to ensure qualified persons carry out the rectification at the respondent's cost.

Court Disposition

Appeal allowed in part; orders of Tribunal below varied.

Orders

  • ['The respondent at her own cost is to engage appropriately qualified and licensed trade persons to demolish the stormwater works and reconstruct them in accordance with the plans of D Mitsopoulos & Associates Plans dated 21 August 2011.' 'All persons carrying out specialist work must provide written evidence to the...