Stevenson v Ashton

[2018] NSWCATCD 25

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Stevenson v Ashton [2018] NSWCATCD 25

Hearing dates:

2 November 2017, 3 November 2017 and 8 February 2018

Date of orders:

28 June 2018

Decision date:

28 June 2018

Jurisdiction:

Consumer and Commercial Division

Before:

D A C Robertson, Senior Member

Decision:

(1) The respondent is to pay the applicant the sum of $42,317.77 immediately.

 

(2) Either party may file written submissions within 14 days seeking an order in relation to the costs of the proceedings.

 

(3) If either party files submissions in accordance with order (2), the other party may file submissions in response within a further 14 days.

 

(4) Any submissions filed in accordance with orders (2) and (3) must address the question whether the question of costs should be determined on the papers and without a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act.

 (5) If no submissions are filed in accordance with orders (2) and (3), the respondent is to pay the applicant’s costs of the proceedings as agreed or assessed.

Catchwords:

BUILDING AND CONSTRUCTION – Home Building – successor in title seeking compensation for allegedly defective work from owner-builder – when work was complete – defective work – whether major defect – whether defect in a major element – what constitutes waterproofing – cost of rectification – whether work order should be made in respect of defective work carried out pursuant to owner-builder permit
WORDS AND PHRASES – “major defect” - “major element” - “waterproofing”

Legislation Cited:

Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW) ss 3B, 18B, 18C, 18E, 48K, 48MA, 48O
Home Building Amendment Act 2014 (NSW)

Cases Cited:

Allianz v Waterbrook [2009] NSWCA 224
Jones v Dunkel (1959) 101 CLR 298
Leung v Alexakis [2018] NSWCATAP 11
Sugar Australia Ltd v Conneq [2011] NSWSC 805

Texts Cited:

Shorter Oxford English Dictionary
Macquarie Dictionary

Category:

Principal judgment

Parties:

Phillip Stevenson (Applicant)
Jacqueline Ashton (Respondent)

Representation:

Counsel:
T Davie (Applicant)
M McMahon (Respondent)

  Solicitors:
Chambers Russell Lawyers (Applicant)
Hughes & Taylor (Respondent)

File Number(s):

HB 16/50587

REASONS FOR DECISION

Introduction

1. In 2012 the respondent was the registered proprietor of a terrace house in Darlinghurst, apparently constructed in the late 19th century. On 7 June 2013 the respondent obtained development consent to undertake additions and renovations at the property. On 7 August 2013 the respondent obtained an owner-builder permit under the Home Building Act 1989 (NSW) to undertake the work the subject of the development consent.

2. On 14 August 2013 the respondent obtained a construction certificate to carry out the work the subject of the development consent.

3. The work involved was described in the Application for Development Consent as:

“Demolition of front wall with asbestos and rear walls on ground floor. Extension of rear living room and kitchen to boundary. New wall to front of house. Extension to rear on first floor and replacement of rear skillion roof. New dormer and rear roof extension to attic (second floor).