(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)
[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
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.