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Owners SP 78465 v MD Constructions PL

Owners SP 78465 v MD Constructions PL

Case [2016] NSWSC 162 19 February 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Owners Strata Plan 78465 -v- M D Constructions Pty Ltd [2016] NSWSC 162
Hearing dates: 16, 17, & 18 February 2016
Decision date: 19 February 2016
Jurisdiction: Equity - Technology and Construction List
Before: Hammerschlag J
Decision:
Judgment for the plaintiff against the defendant in the amount of $577,490.66. Defendant to pay plaintiff’s costs of the proceedings to be assessed on the footing that they have continued in the District Court and the plaintiff will not be entitled to recover any costs from the defendant in connection with the application for the transfer to this Court of these proceedings

Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 18B, 18E(1)(a) – claim for damages for breach of statutory warranty by builder in respect of work not performed in a proper and workmanlike manner – where particulars of defective work were pleaded by reference to an expert report and then amended to refer to another report whether the change constitutes commencing proceedings for the purpose of s 18E(1)(a) – mitigation of damages – whether plaintiff failed to mitigate damages by not giving the defendant builder an opportunity to rectify defective work – HELD – change in particulars was not the commencement of new proceedings – no failure to mitigate because the plaintiff did not act unreasonably in not giving the defendant the opportunity to remedy the defective work
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Home Building Act 1989 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Owners Strata Plan 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067
Shepherd v Felt and Textiles of Australia (1931) 45 CLR 359
Category: Principal judgment
Parties: Owners Strata Plan 78465 - Plaintiff
M D Constructions Pty Ltd - Defendant
Representation:
Counsel:
D. Hand - Plaintiff
J.R. Young - Defendant
Solicitors:
Makinson d’Apice Lawyers - Plaintiff
G&S Lawgroup - Defendant

File Number(s): 2014/135295

EX TEMPORE Judgment

DEFECTS AND QUANTUM

HIS HONOUR: This litigation started life on 19 March 2013 when the plaintiff, Owner's Corporation Strata Plan 78465, which is a 10 apartment double storey residential development in Narrabeen on the Northern Beaches, lodged a claim in the Consumer, Trader and Tenancy Tribunal (CTTT) against the defendant, which built the apartments, for breach of the statutory warranties under s 18B of the Home Building Act 1989 (the Act).
It is common cause that, by s 18B of the Act, the defendant is taken to have warranted to the plaintiff in its contract that its work would be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in their contract. There was no written contract. The defendant also owned at least one apartment for some time.
The building is systemically defective. It is not impervious to water and it leaks. None of the 37 apertures for its windows and doors have flashings. Bathrooms leak because they do not have effective waterproof membranes. Corner angles…

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 Owners SP 78465 v MD Constructions PL

Details

AGLC: Owners Strata Plan 78465 v M D Constructions Pty Ltd [2016] NSWSC 162
Case: [2016] NSWSC 162
Decision Date: 19 February 2016

CaseChat Overview and Summary

In the case of Owners SP 78465 v MD Constructions PL, the plaintiff, Owners SP 78465, sought damages from the defendant, MD Constructions PL, for alleged breaches of statutory warranties under the Home Building Act 1989 (NSW). The plaintiff claimed that the defendant had failed to perform the building work in a proper and workmanlike manner. The dispute was heard and determined by the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff's amendment of the particulars of defective work constituted the commencement of new proceedings, and whether the plaintiff had failed to mitigate damages by not allowing the defendant an opportunity to rectify the defective work.

The court found that the amendment of the particulars did not amount to the commencement of new proceedings under section 18E(1)(a) of the Home Building Act. The court reasoned that the amendment merely clarified the defects that were already pleaded, and did not introduce new claims. Regarding the issue of mitigation, the court held that the plaintiff had not acted unreasonably in not giving the defendant an opportunity to rectify the defective work. The court found that the plaintiff had acted in a manner that was reasonable and appropriate under the circumstances, and therefore there was no failure to mitigate damages.

The court's decision was that the plaintiff's amendment of the particulars did not constitute the commencement of new proceedings, and that the plaintiff had not failed to mitigate damages. The court dismissed the defendant's claims and ordered the defendant to pay the plaintiff's costs of the proceedings. The court found that the plaintiff was entitled to recover damages for the breaches of statutory warranties that were pleaded in the original particulars, and that the plaintiff was not required to give the defendant an opportunity to rectify the defective work before proceeding with the claim.

Orders