Stern v C and E Critharis Constructions Pty Limited

Local Court

New South Wales

Medium Neutral Citation:

Stern v C & E Critharis Constructions Pty Limited [2021] NSWLC 8

Hearing dates:

12 April 2021; written submissions (26 April 2021); further written submissions (10 May 2021); further written submission (17 May 2021)

Decision date:

24 May 2021

Jurisdiction:

Civil

Before:

Nash LCM

Decision:

See [55] – [59]

Catchwords:

Civil claim – Residential building work – Whether builder in breach of contract - Defective building work – Method of rectifying defective works – Cost of rectification works – Contributory negligence –Apportionable contributory negligence – Appropriate remedy – Quantum of damages - Costs

Legislation Cited:

Civil Liability Act 2002

Environmental Planning and Assessment Act 1979

Home Building Act 1989

Local Court Act 2007

Uniform Civil Procedure Rules 2005

Cases Cited:

Cable v Hutcherson Bros (1969) 123 CLR 143

Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303

Ippolito v Cesco [2020] NSWSC 561

The Owners – Strata Plan No. 66375 v King [2018] NSWCA 170

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Clifford John Stern (First Plaintiff)
Raechel Stern (Second Plaintiff)
C & E Critharis Constructions Pty Limited (First Defendant)
Alex Popov Architects Pty Limited trading as Popov Bass Architects (Second Defendant)

Representation:

Counsel:
Ms Julie Wright, Barrister (First and Second Plaintiffs)
Mr Timothy Bland, Barrister (First Defendant)

Solicitors:
Colin Biggers & Paisley Lawyers (First and Second Plaintiffs)
Konstan Lawyers (First Defendant)

File Number(s):

2020/00152870

Publication restriction:

Nil

Judgment

A. Central issue and uncontested background facts

1. The central issue in these proceedings is whether the first defendant, a builder, is liable to the plaintiffs for carrying out defective residential building work at the plaintiffs’ property in Bellevue Hill, which I will refer to in these reasons as the ‘property’, during the course of 2015 – 2016.

2. To assist in understanding these reasons, I will refer to the plaintiffs as the ‘owners’ and the first defendant, C & E Critharis Constructions Pty Limited, as the ‘builder’. The second defendant, Alex Popov Architects Pty Limited, was the owners’ architect, but prior to the hearing of this matter, the proceedings against the second defendant were settled and have been dismissed. It remains necessary, however, to refer to the second defendant in these reasons, and so I will refer to that corporate entity as the ‘architects’.

3. The uncontroversial background facts are as follows.

4. The plaintiffs are the registered proprietors of the property. On or about 4 February 2015, the owners entered into a building contract with the builder pursuant to which the builder was to carry out certain residential building works, including the construction of a new dwelling on the property. In these reasons, I will refer to this as the ‘contract’, and I will refer to the construction of the dwelling as the ‘building works’.

5. The contract contained express terms as to the quality of the building works. Those terms included that all building works done under the contract would comply with:

1. The Building Code of Australia (to the extent required under the Environmental Planning…