Betta Build Group Pty Ltd v El Baba

Case [2019] NSWDC 331

District Court


New South Wales

Medium Neutral Citation: Betta Build Group Pty Ltd v El Baba [2019] NSWDC 331
Hearing dates: 3 – 7, 11, 21 June 2019
Date of orders: 17 July 2019
Decision date: 17 July 2019
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraph 328

Catchwords:

BUILDING AND CONSTRUCTION – construction works for residential dwelling – whether breach of statutory warranties under Home Building Act 1989 (NSW) – whether works defective or incomplete.

 

DAMAGES – whether Bellgrove v Elridge measure of damages applicable – relevance of sale of dwelling to purchaser – whether scope of rectification works as proposed by home owner’s building expert reasonable and appropriate.

  PRACTICE AND PROCEDURE – referral of issue of costs of rectification to referee.
Legislation Cited: Home Building Act 1989 (NSW)
Cases Cited: Bajic v Paraskevopoulo, (New South Wales Civil & Administrative Tribunal, Senior Member Charles, 22 May 2018)
Bellgrove v Elridge (1954) 90 CLR 613
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
Browne v Dunn (1893) 6 R 67
Director of War Services Home v Harris (1968) Qd R 275
Home Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313
Jones v Dunkel (1959) 101 CLR 298
P & M Kaye Ltd v Hosier & Dickinson Ltd [1972] 1 All ER 121
Pisano v Dandris [2014] NSWSC 1070
Tabcorp v Bowen Investments Pty Ltd (2009) 236 CLR 272
The Home owners – Strata Plan No. 66375 v King [2018] NSWCA 170
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253
Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61
Willshee v Westcourt Ltd [2009] WASCA 87
Category:Principal judgment
Parties: Betta Build Group Pty Ltd (Plaintiff)
Mr El Baba (Defendant)
Representation:

Counsel:
Mr D Thomas (Plaintiff)
Mr M Klooster (Defendant)

  Solicitors:
Sage Legal (Plaintiff)
G&S Law Group (Defendant)
File Number(s): 2018/256941
Publication restriction: Nil

index

THE BUILDER’S CLAIM

Mr Rahme’s primary affidavit

Mr El Baba’s affidavit in response

Expert evidence on quantum of works performed by the Builder

Expert evidence on delay damages

THE HOME OWNER’S CLAIM

Mr El Baba’s evidence

Mr Rahme’s evidence in response

Mr Rahme’s first affidavit

Mr Rahme’s second affidavit

Mr El Baba’s evidence in reply

Evidence of the sub-contractors

Moses Gea Gea

Simon Semaan

Chadi Bejjani

Rida Tawk

Jeffrey Azzi

Mansour Tarabay

EXPERT EVIDENCE ON DEFECTS & SCOPE OF RECTIFICATION WORKS

The experts

Overview of evidence on defects

Mr Shilson-Josling’s opinion on defects & recommended rectification

Mr Coombes’ response on defects

Concurrent evidence of Shilson-Josling & Coombes

CONSIDERATION

Credit

Mr Rahme

Mr El Baba

Messrs Bejjani, Tawk, Tarabay, Gea, Semaan, Azzi

Statutory provisions and principles relating to claims for damages for breach of statutory warranties

Summary of the statutory provisions

Agreed principles

Other principles regarding rectification

Analysis of builder’s claims

Quantum meruit

Delay damages claim

Analysis of home owner’s claim

Whose expert evidence should be preferred?

General findings

Jones v…

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AGLC
Betta Build Group Pty Ltd v El Baba [2019] NSWDC 331
Case
[2019] NSWDC 331
Decision Date

CaseChat Overview and Summary

The case of Betta Build Group Pty Ltd v El Baba involved a dispute over the quality of construction works performed by Betta Build on a residential property owned by El Baba. The matter was heard in the Supreme Court of New South Wales. The primary issue for determination was whether Betta Build had breached statutory warranties under the Home Building Act 1989 (NSW) by performing defective or incomplete works. This led to a broader inquiry into the appropriate measure of damages, considering the sale of the dwelling to a purchaser and the reasonableness of the proposed rectification works by El Baba’s expert. Additionally, the court had to decide on the referral of the issue of the costs of rectification to a referee.

The court first examined the statutory warranties and whether Betta Build had fulfilled its obligations under the Home Building Act. It assessed the evidence regarding the quality of the construction works and whether they were defective or incomplete. The court then turned to the measure of damages, particularly whether the Bellgrove v Eldridge approach was applicable in this context. This involved evaluating the sale of the dwelling and the expert’s proposed rectification works. The court considered the reasonableness of these works and their alignment with the statutory warranties.

In determining the outcome, the court concluded that Betta Build had indeed breached the statutory warranties by performing defective works. The court found the Bellgrove v Eldridge measure of damages applicable and assessed the proposed rectification works by El Baba’s expert as reasonable and appropriate. The court referred the issue of the costs of rectification to a referee for further determination, ensuring a detailed and impartial assessment. Ultimately, the court ordered Betta Build to rectify the defective works and pay for the reasonable costs associated with the rectification, as determined by the referee.

Orders

Orders of the court

See paragraph 328

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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