Langov v Denkov; Denkov v Langov

[2017] NSWCATCD 69

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Langov v Denkov; Denkov v Langov [2017] NSWCATCD 69

Hearing dates:

5 and 6 June 2017Submissions Close 16 June 2017

Decision date:

23 August 2017

Jurisdiction:

Consumer and Commercial Division

Before:

S Thode, Senior Member

Decision:

1.   In HB 16/23186 Kole Denkov shall pay to Linda Langov the sum of $161,066 within 28 days of the making of these orders.

2.   HB 16/56088 is dismissed.

Catchwords:

BREACH OF STATUTORY WARRANTIES - abandonment of contract – damages for defective work – findings where expert report unopposed

Legislation Cited:

Civil and Administrative Tribunal Act 2013; Home Building Act 1989

Category:

Principal judgment

Parties:

Linda Langov and Lupco Langov (homeowners)
Kole Denkov (builder)

Representation:

Counsel:
Ms Blackadder of counsel (homeowners)
Mr Jovan Sarai , Safe Harbour Lawyers (builder)

File Number(s):

HB 16/56088 (builder’s claim)HB 16/23186 (homeowners’ claim)

Publication restriction:

Nil

reasons for decision

The proceedings

1. For convenience I shall refer to Mr and Mrs Langov as “the homeowners” and Mr Kole Denkov as “the builder”, although the Tribunal is required to determine whether Mr Denkov was, in fact “the builder” within the meaning of the Home Building Act 1989 or whether Mr Denkov was a project manager. The nomenclature of “homeowner” and “builder” has been adopted for convenience and consistency.

The homeowners’ claim

2. The homeowners filed application HB16/23186 on 16 May 2016 seeking damages in the sum of $169,864 for defective and incomplete work.

3. The homeowners contend that the parties entered into a contract for the provision of residential building work, namely the construction of a new dwelling in Bardia, NSW for $1.5 million.

The contract

4. The parties entered into a written building contract naming Linda Langov as the “owner” and Kole Denkov as “the builder”.

5. The contract commenced on 9 February 2015. The contract is a standard Housing Industry Association or HIA Building contract issued June 2014. The front page of the contract invites the homeowner to “verify that your Builder is a Member of the HIA call xxxxxx “. It states at paragraph 4 of the contract that the contractor must provide the owner with a certificate of home warranty insurance for work over $20,000 before commencement of work.

6. Ms Langov obtained an owner builder permit. She also obtained home owners warranty insurance naming her as the Insured in respect of the building works. Neither party has sought to argue that the existence of an insurance policy in Ms Langov’s name relieves the builder of his statutory obligation to obtain Home Owners Warranty insurance in respect of works over $20,000. I find that, in accordance with the requirements of the Contract and having regard to the statutory requirements of s 92, the builder was required to obtain HWI in his name. The requirements of s 92 will be addressed further below in these reasons.

7. The contract nominates the “builder” as the party named in item 3 of Schedule 1. Item 3 of Schedule 1 contains the “Particulars of Contract”. It states…