Fitzgerald v Waterstop Solutions (NSW) Pty Ltd

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.