Fitzgerald v Waterstop Solutions (NSW) Pty Ltd - [2022] NSWCATCD 84

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Fitzgerald v Waterstop Solutions (NSW) Pty Ltd [2022] NSWCATCD 84
Hearing dates: 20 April 2022
Date of orders: 20 June 2022
Decision date: 20 June 2022
Jurisdiction: Consumer and Commercial Division
Before: P French, Senior Member
Decision:
(1) Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 the application is dismissed on the basis that it is misconceived.
(2) Any application for costs is to be made with supporting submissions by 4 July 2022. Submissions are to be limited to 5 A4 pages in not less than 11 point font.
(3) Any reply to any application for costs is to be made with supporting submissions by 28 July 2022. Submissions are to be limited to 5 A4 pages in not less than 11 point font.
(4) Subject to order (5), pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with any further hearing on the issue of costs.
(5) If a party contends for any different order to order (4) they are to set out the order sought and the grounds for that order in any application for costs or reply to any application for costs.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranty – Due care and skill – Standing of Lot Owners to bring an application under the Home Building Act 1989 against a builder engaged by the Owners Corporation in relation to the repair of common property in a Strata Scheme

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)
Strata Schemes (Freehold Development) Act 2015 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2015 (NSW)

Cases Cited:
Alchin v Rail Corporation NSW [2012] NSWADT 142
BDK v Department of Education and Communities [2015] NSWCATAP 129
EK Constructions Pty Ltd v Zhu [2017] NSWCATAP 102
Grygiel v Baine & Ors [2005] NSWCA 218
Seiwa v Owners Strata Plan 35042 [2006] NSWSC 1157

Texts Cited:
Nil

Category: Principal judgment
Parties: Robert Fitzgerald (First Applicant)
Emma Fitzgerald (Second Applicant)
Waterstop Solutions (NSW) Pty Ltd (Respondent)
Representation:
Counsel:
B Anderson (Respondent)
Solicitors:
Bull, Son and Schmidt (First and Second Applicant)
ITC Law (Respondent)

File Number(s): HB 21/45759
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Robert and Emma Fitzgerald (the applicants) for an order pursuant to s 480(1)(a) of the Home Building Act 1989 (NSW) (HB Act) that would require Waterstop Solutions (NSW) Pty Ltd (the respondent) to pay them $70,721.40 in compensation for the costs they contend they will incur in rectifying defective building work the respondent has carried out on the balcony of their apartment. This application was made to the Tribunal on 7 November 2021 (the application).
The Tribunal has dismissed the application because it is misconceived. The applicants are lot owners in a strata scheme. The building works about which they complain were carried out on common property on their…

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.

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Details

Case: [2022] NSWCATCD 84
Decision Date: 20 June 2022

CaseChat Overview and Summary

Fitzgerald and others brought an application against Waterstop Solutions (NSW) Pty Ltd, a builder engaged by the Owners Corporation of a strata scheme, alleging breaches of statutory warranties under the Home Building Act 1989 (NSW). The applicants claimed that the builder had not exercised due care and skill in the repair of common property within the strata scheme, resulting in damage to their individual lots. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales.

The primary legal issue for the Tribunal to decide was whether the individual lot owners had standing to bring an application under the Home Building Act 1989 against the builder, who was engaged by the Owners Corporation to carry out repairs on common property. The Tribunal had to consider the responsibilities of the Owners Corporation in maintaining and repairing the common property, and whether the individual lot owners could recover damages for any loss suffered due to a contravention of the statutory duty by the Owners Corporation.

In dismissing the application, the Tribunal found that the individual lot owners did not have standing to bring the application against the builder, as the statutory warranties under the Home Building Act 1989 were intended to protect lot owners from defects in the construction of their individual lots, rather than from defects in the maintenance and repair of common property. The Tribunal held that the Owners Corporation, as the entity responsible for maintaining and repairing the common property, was the proper party to bring an action against the builder for any breaches of statutory warranties in relation to the repair of common property.

In addition to dismissing the application, the Tribunal made orders regarding the costs associated with the proceedings. The Tribunal dismissed the application on the basis that it was misconceived and dispensed with any further hearing on the issue of costs, except where a party sought a different order and provided supporting submissions. The Tribunal also set deadlines for any applications for costs and replies to such applications, limiting the length of the submissions.

Orders

Orders of the court

(1) Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 the application is dismissed on the basis that it is misconceived.

(2) Any application for costs is to be made with supporting submissions by 4 July 2022. Submissions are to be limited to 5 A4 pages in not less than 11 point font.

(3) Any reply to any application for costs is to be made with supporting submissions by 28 July 2022. Submissions are to be limited to 5 A4 pages in not less than 11 point font.

(4) Subject to order (5), pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with any further hearing on the issue of costs.

(5) If a party contends for any different order to order (4) they are to set out the order sought and the grounds for that order in any application for costs or reply to any application for 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

Duty of owners corporation to maintain and repair property An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108. Common property memorandum The by-laws for a strata scheme may adopt a common property memorandum prescribed by the regulations for the purposes of this section. The common property memorandum is to specify whether an owner of a lot or the owners corporation is responsible for the maintenance, repair or replacement of any part of the common property. The following warranties by the holder of a contractor license, or person required to hold a contractor license before entering into a contract, are implied in every contract to do residential building work - Definition of residential building work In this Act, A person who is a successor in title to a person entitled to the benefit of a statutory warranty under this Act is entitled to the same rights as the person’s predecessor in title in respect of the statutory warranty.

Medium Neutral Citation:	Fitzgerald v Waterstop Solutions (NSW) Pty Ltd [2022] NSWCATCD 84
Hearing dates:	20 April 2022
Date of orders:	20 June 2022
Decision date:	20 June 2022
Jurisdiction:	Consumer and Commercial Division
Before:	P French, Senior Member
Decision:	(1) Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 the application is dismissed on the basis that it is misconceived. (2) Any application for costs is to be made with supporting submissions by 4 July 2022. Submissions are to be limited to 5 A4 pages in not less than 11 point font. (3) Any reply to any application for costs is to be made with supporting submissions by 28 July 2022. Submissions are to be limited to 5 A4 pages in not less than 11 point font. (4) Subject to order (5), pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with any further hearing on the issue of costs. (5) If a party contends for any different order to order (4) they are to set out the order sought and the grounds for that order in any application for costs or reply to any application for costs.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranty – Due care and skill – Standing of Lot Owners to bring an application under the Home Building Act 1989 against a builder engaged by the Owners Corporation in relation to the repair of common property in a Strata Scheme
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Strata Schemes (Freehold Development) Act 2015 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2015 (NSW)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 BDK v Department of Education and Communities [2015] NSWCATAP 129 EK Constructions Pty Ltd v Zhu [2017] NSWCATAP 102 Grygiel v Baine & Ors [2005] NSWCA 218 Seiwa v Owners Strata Plan 35042 [2006] NSWSC 1157
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Robert Fitzgerald (First Applicant) Emma Fitzgerald (Second Applicant) Waterstop Solutions (NSW) Pty Ltd (Respondent)
Representation:	Counsel: B Anderson (Respondent) Solicitors: Bull, Son and Schmidt (First and Second Applicant) ITC Law (Respondent)
File Number(s):	HB 21/45759
Publication restriction:	Nil