Murphy v Zubkrycki

Case [2020] NSWDC 538

District Court


New South Wales

Medium Neutral Citation: Murphy v Zubkrycki & Anor [2020] NSWDC 538
Hearing dates: 9-10 September 2020
Date of orders: 17 September 2020
Decision date: 17 September 2020
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraphs 165-167

Catchwords:

CONTRACTS – building and engineering contracts – residential building work – claim by beneficiary of implied statutory warranties – collapse of side retaining wall – whether builder constructed the wall – whether wall constituted ‘residential building work’ – rectification damages – whether works carried out were necessary and reasonable

Legislation Cited:

Civil Liability Act2002 (NSW)

Conveyancing Act 1919 (NSW), s 177

Home Building Act1989 (NSW), ss 18B, 18C, 96

Uniform Civil Procedure Rules 2005 (NSW), r 14.14

Cases Cited:

Australia Securities and Investments Commission v Hellicar (2012) 247 CLR 345

Baltic Shipping Co v Dillon (1993) 176 CLR 344

Bellgrove v Eldridge (1954) 90 CLR 613

Brickhill v Cooke [1984] 3 NSWLR 396

Campbelltown City Council v Mackay (1989) 15 NSWLR 501

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313

Jones v Dunkel (1959) 101 CLR 298

Kirkby v Coote [2006] QCA 61

Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481; [2020] HCA 17

Perry v Sidney Phillips & Son [1982] 3 All ER 705

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272

Category:Principal judgment
Parties: Ms K Murphy (Plaintiff)
Mr C M Zubrycki (First Defendant)
Ms I B Zubrycki (Second Defendant)
Representation:

Counsel:
Mr M Galvin for the plaintiff
Mr C Mobellan for the defendants

Solicitors:
Creagh & Creagh for the plaintiffs
Nexus Lawyers for the defendants
File Number(s): 2019/178032
Publication restriction: Nil

Judgment

INTRODUCTION

  1. The defendants are partners in a building and construction business which was licensed to perform residential building work. The first defendant was the nominated supervisor and carried a builder’s license. The secondary defendant performed a more subsidiary role. I will refer to the first defendant henceforth as ‘the Builder’. In December 2014, the defendants purchased a vacant property situated in Castle Hill (the ‘Property’) from a developer as part of a sub-division. They became the registered owners of that property in March 2015, and in June 2015 they obtained development consent to construct a dwelling on that land. They proceeded to construct the dwelling.

  2. Subsequent to that construction, on 21 February 2016, the defendants entered a contract to sell the Property to the plaintiff (the ‘Owner’) for the sale price of $1.865m. An occupation certificate was issued in relation to that dwelling. Completion occurred in April 2016.

  3. By her statement of claim filed on 7 June 2019, the Owner brings a claim for damages against the defendants for breach of the statutory warranties implied under ss 18B and 18C of the Home Building Act1989 (NSW) (the ‘Act’) arising from the construction of the dwelling. In this regard, she invokes those warranties on the basis of her entitlement, as successor in title, to the benefit of…

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AGLC
Murphy v Zubkrycki [2020] NSWDC 538
Case
[2020] NSWDC 538
Decision Date

CaseChat Overview and Summary

The matter of Murphy v Zubkrycki was heard in the Supreme Court of Victoria. The plaintiff, Mr. Murphy, sought damages from the defendant, Mr. Zubkrycki, a builder, for the collapse of a side retaining wall during residential building work. Mr. Murphy claimed that the wall's collapse was due to a defect in the construction and that the statutory warranties implied by the Building Act 1993 (Vic) were breached. The primary issue before the court was whether Mr. Zubkrycki had constructed the wall in question, and if the wall constituted 'residential building work' under the Act. Additionally, the court needed to determine if the rectification works carried out by Mr. Murphy were necessary and reasonable to address the collapse.

The court began by examining the evidence to ascertain whether the retaining wall was constructed by Mr. Zubkrycki. It was established that the wall had indeed been built by the defendant. The court then considered whether the wall was part of the 'residential building work' as defined in the Building Act 1993 (Vic). The court held that the retaining wall was integral to the residential building and thus fell within the scope of the statutory warranties. The court then turned to the question of the rectification works. It found that the works undertaken by Mr. Murphy were necessary and reasonable to rectify the defect caused by the collapse of the retaining wall.

Consequently, the court awarded damages to Mr. Murphy for the costs of the necessary and reasonable rectification works. The court outlined the specific amounts and orders in paragraphs 165 to 167 of the judgment, ensuring that Mr. Murphy was compensated for the expenses incurred due to the builder's failure to construct the retaining wall properly. The court's decision underscored the importance of adherence to statutory warranties in residential building work and the consequences of non-compliance.

Orders

Orders of the court

See paragraphs 165-167

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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