Legal Research
Cases
McIntosh v Lennon

McIntosh v Lennon

Case [2024] NSWSC 169 29 February 2024

Breach of Contract

Statutory Construction

Interpretation of Statutes

Building & Construction Law

Statutory Interpretation

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McIntosh v Lennon [2024] NSWSC 169
Hearing dates: 5 October 2023
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Common Law - Administrative Law
Before: Payne JA
Decision:
(1)   Leave to appeal is granted.
(2)   The summons filed 21 April 2023 is dismissed.
(3)   The plaintiff is to pay the defendants’ costs of the appeal to this Court.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – enforcement of Part 2C statutory warranties against owner-builder – where owner undertook residential building work without an owner-builder permit – whether owner was “owner-builder”
STATUTORY INTERPRETATION – definition of “owner-builder” in Home Building Act – where on literal reading definition extends only to those who had an owner-builder permit – whether definition should be extended to those required to obtain an owner-builder permit but did not – purposive construction – whether legal meaning of definition’s actual words differs from literal meaning – whether permissible to read definition as if it contained additional words – principles for reading additional words into statute

Legislation Cited:
Building Services Corporation Act 1989 (NSW)
Building Services Corporation Legislation Amendment Act1996 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW) ss 80, 83
Civil Procedure Act 2005 (NSW) s 98
Criminal Procedure Act 1986 (NSW) s 179
Environmental Planning and Assessment Act 1979 (NSW) Pt 1, sch 5, s 6.6
Competition and Consumer Act 2010 (Cth)
Conveyancing Act 1919 (NSW) s 52A
Home Building Act 1989 (NSW) Pt 2C, Pt 3, Pt 4, Pt 6, Pt 6AA, ss 12, 18B, 18C, 18D, 29, 30, 31, 32, 32AA, 90, 92, 95, 96, 98, 99, 100, 102A, 103F, 127A; sch 1 cll 1, 2,
Home Building Amendment Act 2014 (NSW)
Interpretation Act 1987 (NSW) s 33
Land Tax Management Act 1956 (NSW)
Local Government Act 1993 (NSW) Pt 1, s 113
Local Government Act 2020 (Vic) s 224
Motor Accidents Compensation Act 1999 (NSW) s 138
Sentencing Act 1991 (Vic) s 37; sch 3 cl 5
Sentencing Amendment (Community CorrectionReform) Act 2011 (Vic) s 21
Work Health Act 1986 (NT) s 3
Conveyancing (Sale of Land) Regulation 2022 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 50.12

Cases Cited:
Carr v Western Australian (2007) 232 CLR 138; [2007] HCA 47
Chief Municipal Inspector - Local Government v Mohamud (2021) 66 VR 1; [2021] VSC 787
Ciaglia v Ciaglia (2010) 269 ALR 175; [2010] NSWSC 341
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182
Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327
Cooper Brookes(Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

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 McIntosh v Lennon

Details

AGLC: McIntosh v Lennon [2024] NSWSC 169
Case: [2024] NSWSC 169
Decision Date: 29 February 2024

CaseChat Overview and Summary

McIntosh and Lennon were parties to a dispute concerning the enforcement of statutory warranties under Part 2C of the Home Building Act 1989 (NSW). McIntosh, the owner of a residential property, engaged in building work without obtaining an owner-builder permit as required by the Act. Lennon, who had purchased the property from McIntosh, sought to enforce the statutory warranties against McIntosh for defects in the building work. The primary legal issue was whether McIntosh could be classified as an "owner-builder" under the Act despite not having obtained the necessary permit, and if so, whether statutory warranties could be enforced against him.

The court examined the definition of "owner-builder" in the Act, which, on a literal reading, appeared to apply only to those who had obtained an owner-builder permit. The court considered whether a purposive construction of the statute was necessary to align the definition with the legislative intent. The court assessed whether the literal meaning of the statutory definition could be extended to include those who were required to obtain an owner-builder permit but did not, and whether it was permissible to interpret the definition as if it contained additional words. The court concluded that a purposive construction was appropriate to give effect to the purpose of the Act, which aimed to protect consumers from defective building work by ensuring that those undertaking such work were adequately regulated.

Ultimately, the court determined that McIntosh could indeed be classified as an "owner-builder" under a purposive interpretation of the statutory definition. The court found that the literal meaning of the definition did not fully capture the intended scope of the term, and it was permissible to read the definition as if it contained additional words to include those who were required to obtain a permit but did not. This interpretation aligned with the legislative purpose of protecting consumers and ensuring adequate regulation of building work. Consequently, Lennon was entitled to enforce the statutory warranties against McIntosh for the defects in the building work.

Orders