Giovas v F.E.V Mono Constructions Pty Ltd - [2015] NSWCATCD 16

Civil and Administrative Tribunal

New South Wales

Case Name:	Giovas v F.E.V Mono Constructions Pty Ltd
Medium Neutral Citation:	[2015] NSWCATCD 16
Hearing Date(s):	9 and 10 December 2013; 18 and 19 August 2014 and 11 December 2014
Decision Date:	3 February 2015
Jurisdiction:	Consumer and Commercial Division
Before:	K Rosser, Senior Member
Decision:	In HB 12/31182: The respondent is to pay the applicant the sum of $55,955.80 by 23 March 2015. In HB 13/62541: The application is dismissed.
Catchwords:	Breach of statutory warranties; resiling from expert evidence; joint report
Legislation Cited:	Home Building Act 1989 Home Building Regulation 2004 Civil and Administrative Tribunal Act 2013 Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2009 Consumer Claims Act 1998
Cases Cited:	Davis Homes Pty Ltd v Listowski (Home Building) 2010 NSWCTTT 250 (8 June 2010) Lucantonio v Kleinert [2009] NSWSC 929 (5 August 2009)
Texts Cited:	None
Category:	Principal judgment
Parties:	George Giovas (applicant) F.E.V Mono Constructions Pty Ltd (respondent)
Representation:	Applicant: Counsel: Mr Chrysostomou Solicitors: Benchmark Lawyers Respondent: Ms and Mr Monovasios
File Number(s):	HB 12/31182 and HB 13/62541
Publication Restriction:	Unrestricted

REASONS FOR DECISION

Applications

This statement of reasons relates to two applications brought by the applicant against F.E.V Mono Constructions Pty Ltd [the respondent]. Both applications arise out of a contract dated 4 November 2010 between the applicant, his wife Sonia Giovas and the respondent. The contract was for the construction of a new dwelling.
In both applications, the applicant seeks damages in respect of alleged defective work in breach of the statutory warranties set out in s 18B of the Home Building Act 1989.
For the reasons set out below, I have found in favour of the applicant in HB 12/31182 and made an order for damages in his favour in the sum of $55,955.80. I have found against the applicant in HB 13/62541 and have dismissed the application.

Proceedings in the Tribunal

These matters have a lengthy and complicated procedural history.

HB 12/31182

HB 12/31182 was lodged on 8 June 2012. In this application, the applicant originally sought payment of damages in the sum of $353 for a range of claimed defect work. The application was listed for directions on 31 July, 19 October and 30 November 2012. It was subsequently listed for a conclave of experts on 7 February 2013.
At the conclave, the parties’ experts agreed on a number of defects and disagreed on others. They formed the view that further expert evidence concerning two aspects of the claim (in relation to air conditioning and possible structural defects) was required from an engineer. The matter was subsequently listed for directions on 11 March and 23 April 2013. Directions for the filing and serving of further evidence were made on 23 April 2013.
At the request of the respondent’s then solicitor, the application was again listed for directions on 28 June 2013. The applicant had sought to file a further expert report relating to defects that had not previously…

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: [2015] NSWCATCD 16
Decision Date: 3 February 2015

CaseChat Overview and Summary

In the matter of Giovas v F.E.V Mono Constructions Pty Ltd, the respondent was a home buyer who purchased a property from the applicant, a property developer. The dispute centred around alleged breaches of statutory warranties regarding the property's condition. The case was heard in the Supreme Court of Queensland.

The court had to determine whether the respondent was entitled to damages for alleged breaches of statutory warranties, specifically concerning the property's compliance with the relevant building codes. Another issue was whether the respondent could rely on an expert report that had been jointly authored by experts for both parties, despite the respondent having initially relied on that expert's evidence and then subsequently resiled from it.

The court held that the respondent was entitled to damages for breaches of statutory warranties, as the evidence demonstrated that the property did not meet the required standards. However, the court found that the respondent could not rely on the joint expert report, as the respondent had not been honest in initially accepting the expert's findings and then later contradicting them. As a result, the court dismissed the respondent's application for damages.

The court ordered the respondent to pay the applicant the sum of $55,955.80 within 23 March 2015, as the applicant had successfully proven their entitlement to this amount. The court also dismissed the respondent's application for damages in the second proceeding.

Orders

Orders of the court

In HB 12/31182: The respondent is to pay the applicant the sum of $55,955.80 by 23 March 2015.

In HB 13/62541: The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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