Clark v Universal Property Group Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Clark v Universal Property Group Pty Ltd [2021] NSWCATCD 151

Hearing dates:

1 September 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

The Respondent to pay the applicant the sum of $7,064.96 on or before 12 January 2022

Catchwords:

BUILDING AND CONSTRUCTION — Defects —whether rectification should be ordered — Assessment of damages — No question of principle

Legislation Cited:

Civil and Administrative Tribunal Act 2010 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Kumar v Sabharwal [2017] NSWCATAP 200

Galdona v Peacock [2017] NSWCATAP 64

Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Edward Clark (Applicant)
Universal Property Group Pty Ltd (Respondent)

Representation:

Applicant (Self-represented)

Counsel:
Mr Chatterjee (Respondent)

File Number(s):

HB 20/46092

Publication restriction:

Not applicable

REASONS FOR DECISION

Summary

1. The applicant seeks damages for rectification of his home, He alleges that the respondent/builder is in breach of the statutory warranty contained in s 18B(1) of the Home Building Act 1989 (NSW) (HB Act), namely the warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract. The applicant is the successor in in title to the original owner (being the respondent who was the developer) and thus relies extension of the statutory warranties provided for in s 18D(1) of the HB Act.

2. The applicant seeks the sum of $75,896.81 being the costs of rectification.

3. For the following reasons, I have decided to order the Respondent to pay the applicant the sum of $7,064.96 on or before 12 January 2022.

Background and common facts

4. The respondent was the builder and developer of strata scheme no 98687 (Scheme) situated at XXX Quakers Hill, NSW 2763 (Property).

5. On 8 July 2019, the applicant purchased Lot 2 in the Scheme (Lot).

6. The building works were undertaken in accordance with a contract

7. On 29 July 2019, the strata plan 98687 for the scheme was registered (Strata Plan).

8. The Lot is situated in the Scheme.

The Applicant’s claims

9. The claims of the applicant are:

1. all the items set out in the joint Scots Schedule dated 22 June 2021;

2. $1,461.48 relating to an unpaid rates and water notices;

3. reimbursement of his expert report;

Procedural

10. At the hearing the applicant appeared in person, and the respondent was represented by Mr Chatterjee of counsel.

11. Due to the COVID protocols of the Tribunal the parties appeared by telephone.

12. Prior to the hearing both parties had filed large amounts of material in accordance with directions of the Tribunal.

13. The applicant’s materials included what amounted to a statement and submissions and many photographs, and the report of Mr Damien Moloney of Capital Building Consultants dated 3 March 2021 (Capital Report). Mr Moloney was required for cross-examination.

14. The respondent relied on a report of Mr Mark Irvine of Tyrrells Property Inspections…