Pan v St George Design & Construction Pty Ltd

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Pan v St George Design & Construction Pty Ltd [2025] NSWCATCD 76
Hearing dates: 6 May 2024; submissions to 29 July 2024
Date of orders: 28 May 2025
Decision date: 28 May 2025
Jurisdiction:Consumer and Commercial Division
Before: G Sarginson, Deputy President
Decision:

(1)   The respondent, St George Design & Construction Pty Ltd, is to perform the works set out in Annexure A of this decision at the residential premises of the applicants with due care and skill by 3 months from the date of this decision (the rectification works).

(2)   The applicants are to give the respondent and its sub-contractors reasonable access to the premises so that the rectification works can be performed.

(3)   The respondent is to pay the applicants’ costs of the proceedings as agreed or assessed.

(4)   If either party seeks to vary order (3) above (the costs application):

(a)   the applicant to the costs application is to lodge and serve the costs application, including submissions limited to 3 pages and any evidence in support, within 7 days of this decision;

(b)   the respondent to the costs application is to lodge and serve any submissions limited to 3 pages and any evidence in response within 14 days of this decision;

(c)    the applicant is to lodge and serve any submissions in reply limited to 2 pages within 21 days from the date of this decision;

(d)    the parties are to indicate in their submissions whether a consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the costs application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of the date for the hearing of the costs application.

Catchwords:

BULDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – s 18E Home Building Act 1989 (NSW) – major defect – whether defects are major defects – appropriate method to rectify

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – successor in title – extension of statutory warranties – knowledge of owner when purchased property – extent and nature of defects at date of purchase - causation

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Allianz v Waterbrook [2009] NSWCA 224; (2009) 15 ANZ Insurance Cases 224

Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158

Crystele Designer Homes Pty Ltd v Wood [2024] NSWSC 1438

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94

Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94

Fisher v N Phillips and M Phillips t/as Arise Building Services [2022] NSWCATCD 80

Gittany v Keusma [2021] NSWCATAP 264

GMI…

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Details
Case
[2025] NSWCATCD 76
Decision Date

CaseChat Overview and Summary

The applicants, Pan, brought an action against St George Design & Construction Pty Ltd, the respondent, under the Home Building Act 1989 (NSW). The applicants alleged that defects in their home constituted major defects under the Act and that the respondent was required to rectify these defects. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issues the court had to determine were whether the defects identified by the applicants were major defects as defined under section 18E of the Home Building Act 1989 (NSW) and, if so, what the appropriate method of rectification would be. Additionally, the court had to consider whether the respondent, as the successor in title, was obligated to extend statutory warranties to the applicants and whether the applicants had knowledge of the defects at the time of purchase, along with the extent and nature of those defects. The causation of the defects was also examined.

The court found that the defects identified by the applicants were indeed major defects under the Home Building Act 1989 (NSW). The court concluded that the respondent was required to perform specific rectification works to address these defects. The court provided detailed instructions on the works to be performed, which were set out in Annexure A of the decision. The court also ordered the respondent to pay the applicants’ costs of the proceedings. In terms of successor in title obligations, the court held that the respondent was not required to extend statutory warranties to the applicants as they did not have knowledge of the defects at the time of purchase, and the defects were not present at that time.

In summary, the court ordered the respondent to perform the rectification works within three months, granted the applicants reasonable access to the premises, and directed the respondent to pay the applicants’ costs. The court also set out a detailed procedure for any future costs applications between the parties.

Orders

Orders of the court

(1) The respondent, St George Design & Construction Pty Ltd, is to perform the works set out in Annexure A of this decision at the residential premises of the applicants with due care and skill by 3 months from the date of this decision (the rectification works).

(2) The applicants are to give the respondent and its sub-contractors reasonable access to the premises so that the rectification works can be performed.

(3) The respondent is to pay the applicants’ costs of the proceedings as agreed or assessed.

(4) If either party seeks to vary order (3) above (the costs application):

(a) the applicant to the costs application is to lodge and serve the costs application, including submissions limited to 3 pages and any evidence in support, within 7 days of this decision;

(b) the respondent to the costs application is to lodge and serve any submissions limited to 3 pages and any evidence in response within 14 days of this decision;

(c) the applicant is to lodge and serve any submissions in reply limited to 2 pages within 21 days from the date of this decision;

(d) the parties are to indicate in their submissions whether a consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the costs application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of the date for the hearing of the costs application.

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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