James v Jandson Pty Ltd

Case [2022] NSWSC 1686


Supreme Court


New South Wales

Medium Neutral Citation: James v Jandson Pty Ltd [2022] NSWSC 1686
Hearing dates: 2 June 2022
Date of orders: 12 December 2022
Decision date: 12 December 2022
Jurisdiction:Common Law
Before: N Adams J
Decision:

(1) The summons is dismissed.

(2) The plaintiffs are to pay the defendant’s costs.

Catchwords:

BUILDING AND CONSTRUCTION – NCAT – Appeal of NCAT Appeal Panel decision – application to extend time for this appeal refused – summons dismissed – statutory warranties as to residential building work – breach of statutory warranty – whether new contract entered into or original contract varied – offer and acceptance – consideration – forbearance to sue – completion date of building works – leave to appeal finding of facts – interpretation of s 3B Home Building Act 1989 (NSW)

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) – ss 80, 83, 84(2), sch 4 cl 12

Environmental Planning and Assessment Act 1979 (NSW)

Home Building Act 1989 (NSW) – s 3B, 18B, 18BA, 18E, 48K, sch 4 cl 109

Home Building Amendment Act 2011 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) – r 50.3

Cases Cited:

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 326; [1990] HCA 33

Collins v Urban [2014] NSWCATAP 17

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Haiderv JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158

Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Reports 81-942

House v The King, (1936) 55 CLR 499; [1936] HCA 40

Integrated Computer Services Pty Ltd v Digital Equipment Corp(Aust) Pty Ltd (1988) 5 BPR 11,110

Jandson Pty Ltd v James [2021] NSWCATAP 274

Jones v Dunkel (1959) 101 CLR 298

Kriketos v Livschitz [2009] NSWCA 96

Lim v Cho [2018] NSWCA 145; (2018) 84 MVR 514

McDonnell v The Owners – Strata Plan No 64191 [2022] NSWSC 1631

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Ormwave v Smith [2007] NSWCA 210

R v Clarke [1927] HCA 47; (1927) 40 CLR 227

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Sand Ground Engineering Pty Ltd v Super Render Pty Ltd [2020] NSWSC 458

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588

Suncorp Metway Insurance v Owners Corporation SP 64487 [2009] NSWCA 223

The Australian Gas Light Company vValuer-General (1940) 40 SR (NSW) 126

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

ToplacePty Ltd v The Council of the City of Sydney [2020] NSWLEC 121

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Weiss v The Queen [2005] 224 CLR 300

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AGLC
James v Jandson Pty Ltd [2022] NSWSC 1686
Case
[2022] NSWSC 1686
Decision Date

CaseChat Overview and Summary

James was a homebuyer who engaged Jandson Pty Ltd, a building contractor, to construct a residential building. James later brought a claim against Jandson for breach of statutory warranties under the Home Building Act 1989 (NSW). The dispute came before the Supreme Court of New South Wales in an appeal from a decision of the New South Wales Civil and Administrative Tribunal (NCAT). James sought an extension of time for filing his appeal, which was refused. James' appeal against the NCAT decision was dismissed.

The court was required to determine whether a new contract had been entered into or whether the original contract had been varied. The central issue was whether the requirements of offer, acceptance, consideration, and forbearance to sue were met in the context of a contract variation. The court also needed to interpret section 3B of the Home Building Act 1989 (NSW) in relation to the completion date of the building works.

The court held that the evidence did not establish that a new contract had been entered into or that the original contract had been varied. There was no offer, acceptance, or consideration for the alleged variation. The court found that there was no forbearance to sue as James had consistently asserted his rights under the original contract. The court further interpreted section 3B of the Home Building Act 1989 (NSW) to mean that the completion date of the building works is a critical factor in determining whether a breach of statutory warranty has occurred. The court found that the statutory warranties were not breached because the building works were completed within a reasonable time.

The appeal was dismissed, and the summons was refused. The court found that the NCAT's decision was correct, and no leave to appeal the findings of fact was granted.

Orders

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