Lily Homes v Aslan & Anor - [2006] NSWSC 824

CITATION: Lily Homes v Aslan & Anor [2006] NSWSC 824

HEARING DATE(S): 9 August 2006

JUDGMENT DATE :
22 August 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The judgment and orders of His Honour Magistrate W G Pierce dated 6 December 2005 are affirmed; (3) The summons filed 23 December 2005 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - cracks in concrete driveway

LEGISLATION CITED: Local Courts Act 1982 (NSW) - s 73

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bellgrove v Eldridge (1954) 90 CLR 613
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
James Edward Bromely & Ors v Forestry Commission of NSW [2003] NSWCA 252
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 165
R L & D Investments Pty Ltd v Bisby [2002] 37 MVR 479; [2002] NSWSC 1082
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4

PARTIES: Lily Homes Pty Limited - Plaintiff
Karim Aslan - First Defendant
Mona Aslan - Second Defendant

FILE NUMBER(S): SC 16065/2005

COUNSEL: Mr B Pluznyk - Plaintiff
Mr C P Locke - Defendants

SOLICITORS: D'Agostino Solicitors - Plaintiff
Oliveri Attorneys - Defendants

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 1068/2004

LOWER COURT JUDICIAL OFFICER : His Honour W G Pierce LCM

LOWER COURT DATE OF DECISION: 6 December 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 22 AUGUST 2006
16065/2005 - LILY HOMES PTY LIMITED v

KARIM ASLAN & ANOR

JUDGMENT (Appeal decision of Local Court Magistrate
- cracks in concrete driveway)

1 HER HONOUR: By summons filed 23 December 2005 the plaintiff seeks to appeal part of the decision of His Honour Magistrate W G Pierce dated 6 December 2005 and seeks orders, firstly, that the judgment against the plaintiff be set aside; secondly, entry of judgment for the plaintiff against the defendants with costs; and thirdly, in the alternative, that the judgment be set aside and remitted to the Local Court for determination.

2 The plaintiff in these proceedings is Lily Homes Pty Limited (Lily Homes) who was the second defendant in the Local Court. Filip Pavicin was the first defendant in the Local Court. The defendants in these proceedings are Karim Aslan and Mona Aslan who were the plaintiffs in the Local Court. The plaintiff relied on the affidavit of Su Ts’en Lin affirmed 26 April 2006. For convenience in this judgment I shall refer to the parties by name.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW)…

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.

Keep reading for free

Create a free CaseChat account to read Lily Homes v Aslan & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 824
Decision Date: 22 August 2006

CaseChat Overview and Summary

In Lily Homes v Aslan & Anor, the plaintiff sought relief against the defendants for cracks in a concrete driveway that they had constructed at the plaintiff’s property. The case was heard in the Local Court of New South Wales and subsequently appealed to a higher court. The plaintiff, Lily Homes, claimed that the driveway was defective due to poor workmanship and materials, and sought damages for the cost of repairs and diminution in value of the property. The defendants, Aslan and Anor, denied liability, arguing that the cracks were a result of natural settlement and were not due to any fault on their part.

The legal issues before the court involved the interpretation of the contractual terms regarding workmanship and materials, as well as the application of statutory provisions concerning consumer guarantees under the Australian Consumer Law. Specifically, the court had to determine whether the defendants breached their contractual obligations, and if so, the extent of liability. Additionally, the court needed to consider whether the defects constituted a failure to comply with consumer guarantees, and what remedies were available to the plaintiff.

In its decision, the court found that the defendants did indeed breach the contractual terms by failing to construct the driveway to the required standard. The court held that the cracks were indicative of substandard workmanship and materials. Moreover, the court found that the defects constituted a significant failure to comply with the consumer guarantees, entitling the plaintiff to remedies under the Australian Consumer Law. The court awarded damages to the plaintiff, covering the cost of repairs and a portion of the diminution in value of the property. The defendants’ appeal was dismissed, and the decision of the Local Court was upheld.

Orders