Salcap Property Holdings Pty Ltd v JSquared Projects Pty Ltd - [2024] NSWCATCD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Salcap Property Holdings Pty Ltd v JSquared Projects Pty Ltd [2024] NSWCATCD 45
Hearing dates: 14 February 2024
Date of orders: 04 June 2024
Decision date: 04 June 2024
Jurisdiction: Consumer and Commercial Division
Before: D Ziegler, Senior Member
Decision:
1 Within 14 weeks of the date of these orders the respondent is to carry out the works specified in the Schedule attached to these orders, in a proper and workmanlike manner.
2 The application is otherwise dismissed.
3 If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.
4 The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.
5 The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.
6 The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
7 The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – defective building work – implied warranties – contract to perform residential building work – successor in title – claim for breach of implied warranties against a person who did not physically perform the work – major defects – work order or money order.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
Denmeade v Travers [2023] NSWCATCD 3
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Leung v Alexakis [2018] NSWCATAP 11
Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51
Stevenson v Ashton [2019] NSWSC 1689
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405

Category: Principal judgment
Parties: SalCap Property Holdings Pty Limited (Applicant)
JSquared Projects Pty Ltd (Respondent)
Representation:
Counsel:

DP O’Connor (Applicant)
A Rogers (Respondent)

Solicitors:
Adams Partners (Applicant)
Francom Legal (Respondent)

File Number(s): 2023/00396138 (formerly HB 23/22448)
Publication restriction: Nil

REASONS FOR DECISION

This is an application brought under the Home Building Act 1989 (NSW) (the HB Act). The dispute involves a duplex home in a suburb of Sydney (the property) which was renovated in 2019. The applicant owner, who purchased the property in 2020, alleges that the building works are defective and in breach of the statutory warranties in s 18B(1) of the HB Act. The alleged defects largely involve waterproofing and water ingress…

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.

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Details

Case: [2024] NSWCATCD 45
Decision Date: 04 June 2024

CaseChat Overview and Summary

In the matter of Salcap Property Holdings Pty Ltd v JSquared Projects Pty Ltd, the dispute involved the quality of residential building work. The parties were before the Civil and Administrative Tribunal (CAT) in New South Wales. The plaintiff, Salcap Property Holdings Pty Ltd, sought a remedy for alleged defects in building work executed by the defendant, JSquared Projects Pty Ltd. Salcap, the successor in title to the original building contract, claimed that the construction work contained major defects, thus breaching implied warranties under the Home Building Act 1989 (NSW). The primary issue before the court was whether a successor in title could claim against a builder for breach of implied warranties when the builder did not directly perform the work.

The court considered the legislative framework provided by the Home Building Act 1989 (NSW) and relevant case law. It was necessary to determine whether Salcap, as the successor in title, had the right to seek redress for defects in the building work. The court examined the nature of the implied warranties under the Act and the extent to which they could be enforced by someone who did not directly engage the builder. The court found that the implied warranties were intended to protect the original purchaser from defects in the building work, but also acknowledged that these warranties could extend to successors in title under certain conditions. Ultimately, the court determined that Salcap, as the successor in title, had the right to claim for breach of implied warranties if the defects were significant enough to warrant a work or money order.

In conclusion, the Tribunal found in favour of Salcap and ordered JSquared Projects Pty Ltd to carry out specified works to rectify the major defects within 14 weeks. The Tribunal dismissed the application otherwise and outlined the process for any subsequent costs applications, allowing for submissions to be made within specified timeframes. The Tribunal reserved the right to determine any costs application on the papers without a further oral hearing if appropriate.

Orders

Orders of the court

1 Within 14 weeks of the date of these orders the respondent is to carry out the works specified in the Schedule attached to these orders, in a proper and workmanlike manner.

2 The application is otherwise dismissed.

3 If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.

4 The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.

5 The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.

6 The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

7 The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Salcap Property Holdings Pty Ltd v JSquared Projects Pty Ltd [2024] NSWCATCD 45
Hearing dates:	14 February 2024
Date of orders:	04 June 2024
Decision date:	04 June 2024
Jurisdiction:	Consumer and Commercial Division
Before:	D Ziegler, Senior Member
Decision:	1 Within 14 weeks of the date of these orders the respondent is to carry out the works specified in the Schedule attached to these orders, in a proper and workmanlike manner. 2 The application is otherwise dismissed. 3 If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders. 4 The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders. 5 The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders. 6 The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 7 The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – defective building work – implied warranties – contract to perform residential building work – successor in title – claim for breach of implied warranties against a person who did not physically perform the work – major defects – work order or money order.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Denmeade v Travers [2023] NSWCATCD 3 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Leung v Alexakis [2018] NSWCATAP 11 Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51 Stevenson v Ashton [2019] NSWSC 1689 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405
Category:	Principal judgment
Parties:	SalCap Property Holdings Pty Limited (Applicant) JSquared Projects Pty Ltd (Respondent)
Representation:	Counsel: DP O’Connor (Applicant) A Rogers (Respondent) Solicitors: Adams Partners (Applicant) Francom Legal (Respondent)
File Number(s):	2023/00396138 (formerly HB 23/22448)
Publication restriction:	Nil