Di Lullo v JG King Pty Ltd

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Di Lullo v JG King Pty Ltd [2025] NSWDC 213

Hearing dates:

22 – 25, 28 October 2024

Date of orders:

13 June 2025

Decision date:

13 June 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

See [185] – [186] of the judgment

Catchwords:

BUILDING AND CONSTRUCTION — Contract — Defects – Home Building Act 1989 (NSW) – Design and Building Practitioners Act 2020 (NSW) – liability of builder – liability of engineer

Legislation Cited:

Civil Liability Act 2002 (NSW)

Competition and Consumer Act 2010 (Cth)

Design and Building Practitioners Act 2020 (NSW)

Evidence Act 1995 (NSW)

Home Building Act 1989 (NSW)

Trade Practices Act 1974 (Cth)

Cases Cited:

Pafburn Pty Ltd v The Owners – Strata PlanNo 84674 [2024] HCA 46

Yorke v Lucas (1985) 158 CLR 661

Category:

Principal judgment

Parties:

Adrian Di Lullo (First Plaintiff)
Letticia Di Lullo (Second Plaintiff)
JG King Pty Ltd (Defendant/Cross-Claimant on the First Cross-Claim)
Newpoint Reinsurance Company Ltd (First Cross-Defendant on the First Cross-Claim/Cross-Defendant on the Second Cross-Claim)
Enio Sciessere (Second Cross-Defendant on the First Cross-Claim/Cross-Claimant on the Second Cross-Claim)

Representation:

Counsel:
A Barnett (Plaintiffs)
F Galvin (Defendant/Cross-Claimant on the First Cross-Claim)
T E O’Brien (First Cross-Defendant on the First Cross-Claim/Cross-Defendant on the Second Cross-Claim)
R A Parsons (Second Cross-Defendant on the First Cross-Claim/Cross-Claimant on the Second Cross-Claim)

Solicitors:
Holding Redlich (Plaintiffs)
Champions Lawyers (Defendant/Cross-Claimant on the First Cross-Claim)
HBA Crawford (First Cross-Defendant on the First Cross-Claim/Cross-Defendant on the Second Cross-Claim)
Hicks Oakley Chessell Williams Lawyers & Notary (Second Cross-Defendant on the First Cross-Claim/Cross-Claimant on the Second Cross-Claim)

File Number(s):

2022/00133113

Publication restriction:

Nil

JUDGMENT

1. The plaintiffs, Adrian and Letticia Di Lullo (‘the Di Lullos’) engaged JG King Pty Ltd (‘the Builder’) to build a house on the Di Lullos’ property in a town in south-western New South Wales (‘the property’). The house was completed in June 2017. Subsequently, elements of the house, including the roof, the wall bracing, the walls, wet areas, cornices, floors and fixtures have suffered damage because of significant movement in the house. The movement has been attributed to the slab on which the house is built, which is a waffle slab, becoming distorted in a process referred to as ‘edge heave’.

2. In these proceedings, the Di Lullos allege that the Builder has breached statutory warranties provided for under s 18B(1) of the Home Building Act 1989 (NSW), has breached its contract with them, and has breached the duty of care imposed on it under s 37 of the Design and Building Practitioners Act 2020 (NSW). The Builder denies that it breached statutory warranties, breached the contract and/or breached the duty of care under s 37 of the Design and Building Practitioners Act 2020.

3. The Builder has brought a cross-claim (‘the First Cross-Claim’) against both Mr Enio Sciessere, the engineer who designed the slab for the Di Lullos’ house pursuant to an agreement with the Builder, and against Newpoint Reinsurance Company Ltd (‘Newpoint’), the reinsurer for General…