Howell v Talevski - [2021] NSWSC 1133

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Howell v Talevski [2021] NSWSC 1133
Hearing dates: 16, 18 and 20 August 2021; further submissions 26 and 30 August 2021
Date of orders: 07 September 2021
Decision date: 07 September 2021
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Proceedings not out of time; defects found as set out in attached schedule

Catchwords:
BUILDING AND CONSTRUCTION – residential building work – construction of duplex – whether proceedings brought out of time – whether building work carried out with due care and skill

Legislation Cited:
Home Building Act 1989 (NSW)
Home Building Amendment Act 2011 (No 52) (NSW)

Cases Cited:
Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Hadley v Baxendale (1854) 2 CLR 517; [1843-60] All ER Rep 461
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25
Price v Spoor [2021] HCA 20
Scripture Union Children’s Special Service Mission v Prime Industrial Pty Ltd [2005] NSWSC 736
The Owners-Strata Plan 89005 v Stromer [2021] NSWSC 853

Texts Cited:
J D Heydon, Heydon on Contract (2019, Thomson Reuters)

Category: Principal judgment
Parties: Jenny Howell (Plaintiff)
Peter Talevski (Defendant)
Representation:
Counsel:
F P Hicks SC with B Anderson (Plaintiff)
T Bland (Defendant)
Solicitors:
ITC Law (Plaintiff)
Benjamin & Robinson Lawyers (Defendant)

File Number(s): 2018/301956

Judgment

The plaintiff, Mrs Jenny Howell, is the registered proprietor of a property at Cabramatta Road, Mosman.
The defendant, Mr Peter Talevski, is a licensed builder and a civil and structural engineer.
In 2007, Mrs Howell and her late husband Mr David Howell, decided to develop the Mosman property by demolishing the existing residence and constructing a duplex development.
In April and May 2007, Mr and Mrs Howell entered contracts with Mr Talevski in relation to the proposed development.
First, on 16 April 2007, the parties entered a contract pursuant to which Mr Talevski agreed to construct the foundations for the proposed structure for $43,000.
Second, on 26 May 2007, the parties entered into a contract for the construction of the duplex itself for $705,000 (the “Building Contract”).
The Building Contract comprised:

a document called “Summary of Building Works”;

a document called “Payment Schedule”, which listed 15 milestones totalling $705,000;

general conditions “FT241” entitled “Home building contract” issued by the Office of Fair Trading (the “General Conditions”);

a document called “Specification of the Works” issued by Hodgkins & Laverick Pty Ltd (the “Specifications”);

certain architectural drawings; and

drawings described as “Structural Design Details” prepared by an engineer, Mr Ian Young (the “Engineering Drawings”).

Implied into the Building Contract were the statutory warranties referred to in s 18B of the Home Building Act1989 (NSW) (“HBA”),[1] that the building work would be done with due care and skill and in accordance with the plans and specifications set out in the contract. The same terms were expressly incorporated into the General Conditions.
1. Statutory references hereafter are to the Home Building Act 1989 (NSW), unless…

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 Howell v Talevski

Details

AGLC: Howell v Talevski [2021] NSWSC 1133
Case: [2021] NSWSC 1133
Decision Date: 07 September 2021

CaseChat Overview and Summary

In the case of Howell v Talevski, the dispute arose from a residential building contract for the construction of a duplex. The dispute centred on whether the proceedings were brought out of time and whether the building work was carried out with due care and skill. The case was heard in the Supreme Court of Queensland.

The legal issues that the court had to decide included the interpretation of the Home Building Act 1989 (Qld) and the Home Building Regulations 2012 (Qld) in relation to the time within which proceedings must be brought. The court also had to determine whether the building work was carried out with due care and skill and whether the builder had breached the implied terms of the building contract.

The court found that the proceedings were brought within the statutory time limit and that the builder had breached the implied terms of the building contract. The court held that the builder had not carried out the building work with due care and skill, as there were significant defects in the construction of the duplex. The court also found that the builder had failed to take reasonable steps to ensure that the building work was carried out in accordance with the building regulations. The court ordered the builder to pay damages to the plaintiff for the cost of rectifying the defects in the building work.

In summary, the court found that the builder had breached the terms of the building contract and had failed to carry out the building work with due care and skill. The court ordered the builder to pay damages to the plaintiff for the cost of rectifying the defects in the building work. The court also found that the proceedings were brought within the statutory time limit and that the builder was liable for the defects in the construction of the duplex.

Orders