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 87Category: Principal judgment Parties: Betta Build Group Pty Ltd (Plaintiff)
Mr El Baba (Defendant)Representation: Counsel:
Solicitors:
Mr D Thomas (Plaintiff)
Mr M Klooster (Defendant)
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 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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