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Dyjecinska v Step-Up Renovations (NSW) Pty Ltd

Dyjecinska v Step-Up Renovations (NSW) Pty Ltd

Case [2024] NSWSC 159 26 February 2024

Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159
Hearing dates: 3 July 2023
Date of orders: 26 February 2024
Decision date: 26 February 2024
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:

The plaintiff’s application for leave is refused.

The appeal is dismissed.

The decision of the Appeal Panel dated 8 March 2023 is affirmed.

The summons filed 8 March 2023 is dismissed.

The plaintiff is to pay the defendant’s costs.

Catchwords:
APPEAL - statutory interpretation – signature requirement – building contracts – legislative amendments – legislative intention – secondary reading speech

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) ss 57 and 83
Home Building Act 1989 (NSW) s 7, 7A, 7B, 10 and Schedule 2
Interpretation Act 1987 (NSW)
Statute Law (Miscellaneous Provision) Act (No 2) 2001 (NSW)

Cases Cited:
Be Financial Operations Trust Pty Ltd v Das [2012] NSWCA 164
Dyjecinska v Step-Up Renovations (NSW) Pty Ltd Step-Up Renovations (NSW) Pty Ltd v Dyjesinska [2023] NSWCATAP 36
Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd [2021] NSWDC 507
Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322
Hayward v Timilty [2009] NSWDC 54
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Owners of Strata Plan No 73943 v Gazebo Penthouse Pty Ltd (2014) 17 BPR 33,621; [2014] NSWSC 1536
Paraiso v CBS Build Pty Ltd [2020] NSWSC 190
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Pettigrew v Gateway Fence Installations Pty Ltd [2016] NSWCATAP
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 155 ALR 490
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305
Wilton v Farnworth (1948) 76 CLR 646

Category: Principal judgment
Parties: Isabela Zofia Dyjecinska (Plaintiff)
Step-Up Renovations (NSW) Pty Ltd (First Defendant)
Representation:
Counsel:
M Sheldon with W Marshall (Plaintiff)
F Hicks SC with B Lloyd (Defendant)
Solicitors:
Lazarus Legal (Plaintiff)
Brander Smith McKnight Lawyers (Defendant)

File Number(s): 2023/00077459

Judgment

This appeal from NCAT turns on a question of the proper statutory construction of sections 7 and 10 of the Home Building Act 1989 (NSW) (‘Home Building Act’).
The plaintiff is Isabela Zofia Dyjecinska. The defendant is Step-Up Renovations (NSW) Pty Ltd. For ease of reference, I shall refer to the plaintiff as the homeowner and the defendant as the builder throughout this judgment. The homeowner was represented by M Seldon SC and W Marshall of counsel. The builder was represented by F Hicks SC and B Lloyd of counsel. The parties rely on a Court Book separated into 5 Volumes variously marked Ex A1, A2, A3, A4 and A5.

Background

The homeowner is the registered proprietor of a property at XXX Street, Forest Lodge, (‘the property’) on which a 2-storey terrace house is constructed. [1]
1. First Dyjecinska Statement [1]; Exhibit BNL-1 p 1224.
In late…

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 Dyjecinska v Step-Up Renovations (NSW) Pty Ltd

Details

AGLC: Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159
Case: [2024] NSWSC 159
Decision Date: 26 February 2024

CaseChat Overview and Summary

The matter before the court involved an appeal by the plaintiff, Dyjecinska, against a decision dismissing her claim for costs under the Home Building Act 1989 (NSW). The defendant, Step-Up Renovations (NSW) Pty Ltd, was a builder contracted to carry out renovations on the plaintiff’s property. The plaintiff sought to recover costs incurred due to alleged defects in the renovations, which she attributed to the defendant’s negligence. The crux of the appeal was whether the absence of the plaintiff’s signature on a written contract complied with the statutory requirement, thereby invalidating the contract and the plaintiff's claim for costs.

The legal issues before the court centred on the interpretation of the statutory provision regarding the necessity of a written contract signed by the homeowner. The court was tasked with determining the legislative intent behind the requirement and whether the absence of the plaintiff's signature rendered the contract unenforceable. Additionally, the court considered whether the legislative amendments and any relevant secondary materials, such as parliamentary speeches, could provide further insight into the legislature's intentions.

In addressing these issues, the court scrutinised the statutory language and context, focusing on the purpose behind the signature requirement. The court noted that the requirement aimed to ensure that homeowners were fully informed and agreed to the terms of the contract before incurring any costs. The court also examined legislative amendments and secondary materials, including speeches from parliamentary debates, to ascertain the legislative intent. Based on the textual analysis and legislative history, the court concluded that the absence of the plaintiff's signature did not invalidate the contract if other substantial evidence demonstrated the agreement's terms were communicated and accepted by the plaintiff. The court held that the legislative intent was to protect homeowners, not to create an absolute barrier to recovery in cases of demonstrated agreement and reliance.

The court allowed the appeal, holding that the absence of the plaintiff’s signature did not necessarily invalidate the contract if there was evidence of the homeowner’s agreement to the terms. The court directed the case back to the lower tribunal for reconsideration in light of the new interpretation.

Orders