Brown v Reed - [2024] NSWCATCD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Brown v Reed [2024] NSWCATCD 52
Hearing dates: 8 February 2024 and 9 February 2024
Date of orders: 13 September 2024
Decision date: 13 September 2024
Jurisdiction: Consumer and Commercial Division
Before: R. Alkadamani, Senior Member
Decision:
(1) Order the respondent to rectify the main bathroom by removing the floor tiles, the first row of wall tiles, removing the existing waterproof membrane and applying a new waterproofing membrane on the floor of the main bathroom, including upturning the waterproof membrane at the floor and wall junction, and reinstallation of new tiles, and such work to comply with AS3470/2021.
(2) Order that the work in the main bathroom described in order 1 otherwise be carried out in accordance with the scope of works of the builder’s expert in the Joint Expert Report at exhibit 1, pages 144-145.
(3) Order that the respondent rectify the ensuite defects by removing the floor tiles, the first row of wall tiles, removing the existing waterproof membrane and applying a new waterproofing membrane on the floor of the ensuite, including upturning the waterproof membrane at the floor and wall junction, and re-installation of new tiles, and such work to comply with AS3470/2021.
(4) Order that the work in the ensuite described in order 3 otherwise be carried out in accordance with the scope of works of the builder’s expert in the Joint Expert Report at exhibit 1, pages 150-151.
(5) Order that the respondent rectify the retaining wall in the rear yard of the Property in accordance scope of works proposed by the builder’s expert in Exhibit 1 at pages 168-169.
(6) Order that the respondent rectify the driveway and concrete works in accordance with the scope of works of the homeowner’s expert in the Joint Expert Report at exhibit 1, page 172.
(7) Order that all the work in orders 1 – 6 be carried out with due skill and care.
(8) Reserve the question of costs.
(9) Direct that any party that wishes to make any submissions as to costs to file and serve written submissions of no more than 3 pages within 14 days, identifying the evidence on which they rely.
(10) Direct that any party that wishes to oppose any submissions made pursuant to the preceding order file and serve written submissions of no more than 3 pages within 28 days, identifying the evidence on which they rely.
(11) Direct that the submissions as to costs also address whether the Tribunal can dispense with a hearing in respect of costs.

Catchwords:
HOME BUILDING – limitation period – whether work not complete- completion – practical completion
HOME BUILDING – major defects

Legislation Cited:
Home Building Act 1989 (NSW)

Cases Cited:
Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233
Blackhall v Fine Cut Building Pty Ltd [2011] NSWCATCD 43
Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 44
Clements v Murphy [2018] NSWCATAP 152
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Reed

Details

AGLC: Brown v Reed [2024] NSWCATCD 52
Case: [2024] NSWCATCD 52
Decision Date: 13 September 2024

CaseChat Overview and Summary

In the case of Brown v Reed, the plaintiff sought a declaration that certain work performed on their property was not of a standard consistent with the requirements of the Home Building Act 1989 (NSW). The defendants, who were the builders, claimed that they were not liable for defects as the work had been completed and the statutory limitation period had expired. The matter was heard in the NSW Civil and Administrative Tribunal.

The legal issues before the tribunal included whether the limitation period for the plaintiff's claim had expired and whether the work was practically completed as defined by the Act. The tribunal had to determine the practical completion of the work to ascertain if the limitation period applied.

The tribunal found that the work was not practically complete as the builders had not addressed certain defects in the main bathroom, ensuite, retaining wall, and driveway. The tribunal held that the work was not practically complete until these defects were rectified. Consequently, the tribunal found that the builders were liable for the defects, and the limitation period did not apply. The tribunal ordered the builders to rectify the defects in accordance with the scope of works proposed by the experts and to carry out the work with due skill and care. The question of costs was reserved for later determination, with directions for parties to file written submissions.

Orders

Orders of the court

(1) Order the respondent to rectify the main bathroom by removing the floor tiles, the first row of wall tiles, removing the existing waterproof membrane and applying a new waterproofing membrane on the floor of the main bathroom, including upturning the waterproof membrane at the floor and wall junction, and reinstallation of new tiles, and such work to comply with AS3470/2021.

(2) Order that the work in the main bathroom described in order 1 otherwise be carried out in accordance with the scope of works of the builder’s expert in the Joint Expert Report at exhibit 1, pages 144-145.

(3) Order that the respondent rectify the ensuite defects by removing the floor tiles, the first row of wall tiles, removing the existing waterproof membrane and applying a new waterproofing membrane on the floor of the ensuite, including upturning the waterproof membrane at the floor and wall junction, and re-installation of new tiles, and such work to comply with AS3470/2021.

(4) Order that the work in the ensuite described in order 3 otherwise be carried out in accordance with the scope of works of the builder’s expert in the Joint Expert Report at exhibit 1, pages 150-151.

(5) Order that the respondent rectify the retaining wall in the rear yard of the Property in accordance scope of works proposed by the builder’s expert in Exhibit 1 at pages 168-169.

(6) Order that the respondent rectify the driveway and concrete works in accordance with the scope of works of the homeowner’s expert in the Joint Expert Report at exhibit 1, page 172.

(7) Order that all the work in orders 1 – 6 be carried out with due skill and care.

(8) Reserve the question of costs.

(9) Direct that any party that wishes to make any submissions as to costs to file and serve written submissions of no more than 3 pages within 14 days, identifying the evidence on which they rely.

(10) Direct that any party that wishes to oppose any submissions made pursuant to the preceding order file and serve written submissions of no more than 3 pages within 28 days, identifying the evidence on which they rely.

(11) Direct that the submissions as to costs also address whether the Tribunal can dispense with a hearing in respect of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Brown v Reed [2024] NSWCATCD 52
Hearing dates:	8 February 2024 and 9 February 2024
Date of orders:	13 September 2024
Decision date:	13 September 2024
Jurisdiction:	Consumer and Commercial Division
Before:	R. Alkadamani, Senior Member
Decision:	(1) Order the respondent to rectify the main bathroom by removing the floor tiles, the first row of wall tiles, removing the existing waterproof membrane and applying a new waterproofing membrane on the floor of the main bathroom, including upturning the waterproof membrane at the floor and wall junction, and reinstallation of new tiles, and such work to comply with AS3470/2021. (2) Order that the work in the main bathroom described in order 1 otherwise be carried out in accordance with the scope of works of the builder’s expert in the Joint Expert Report at exhibit 1, pages 144-145. (3) Order that the respondent rectify the ensuite defects by removing the floor tiles, the first row of wall tiles, removing the existing waterproof membrane and applying a new waterproofing membrane on the floor of the ensuite, including upturning the waterproof membrane at the floor and wall junction, and re-installation of new tiles, and such work to comply with AS3470/2021. (4) Order that the work in the ensuite described in order 3 otherwise be carried out in accordance with the scope of works of the builder’s expert in the Joint Expert Report at exhibit 1, pages 150-151. (5) Order that the respondent rectify the retaining wall in the rear yard of the Property in accordance scope of works proposed by the builder’s expert in Exhibit 1 at pages 168-169. (6) Order that the respondent rectify the driveway and concrete works in accordance with the scope of works of the homeowner’s expert in the Joint Expert Report at exhibit 1, page 172. (7) Order that all the work in orders 1 – 6 be carried out with due skill and care. (8) Reserve the question of costs. (9) Direct that any party that wishes to make any submissions as to costs to file and serve written submissions of no more than 3 pages within 14 days, identifying the evidence on which they rely. (10) Direct that any party that wishes to oppose any submissions made pursuant to the preceding order file and serve written submissions of no more than 3 pages within 28 days, identifying the evidence on which they rely. (11) Direct that the submissions as to costs also address whether the Tribunal can dispense with a hearing in respect of costs.
Catchwords:	HOME BUILDING – limitation period – whether work not complete- completion – practical completion HOME BUILDING – major defects
Legislation Cited:	Home Building Act 1989 (NSW)
Cases Cited:	Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233 Blackhall v Fine Cut Building Pty Ltd [2011] NSWCATCD 43 Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 44 Clements v Murphy [2018] NSWCATAP 152 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR…