Taraschi v Jessop Constructions Pty Limited - [2024] NSWCATCD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Taraschi v Jessop Constructions Pty Limited [2024] NSWCATCD 37
Hearing dates: 05 October 2023
Date of orders: 13 March 2024
Decision date: 13 March 2024
Jurisdiction: Consumer and Commercial Division
Before: D.Goldstein, Senior Member
Decision:
(1)   Jessop Constructions Pty Limited must pay Valerio Taraschi the sum of $123,683.25 immediately.
(2)   In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
(3)   The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on/give to the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
(4)   The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
(5)   Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

Catchwords:
BUILDING and CONSTRUCTION – Defective building work – Section 18D of the Home Building Act 1989 – Photographic evidence

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

Cases Cited:
Blacktown City Council v Hocking [2008] NSWCA 144
X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181

Texts Cited:
None cited

Category: Principal judgment
Parties: Valerio Taraschi: applicant
Jessop Constructions Pty Limited: respondent
Representation: Solicitors:
Albert A Macri Co for the applicant
The respondent was represented by its director, Mr Jessop

File Number(s): 2023/00404325 (Previously HB 23/12770)
Publication restriction: Nil

REASONS FOR DECISION

In these proceedings the respondent carried out residential building work at a property in Caringbah South. The property was sold to the applicant soon after the final occupation certificate was issued. Despite not being in a contractual relationship with the respondent, the applicant has a cause of action against it pursuant to s18D of the Home Building Act 1989 (‘HBA’).
These proceedings arise primarily because of the collapse of a retaining wall at the property. The applicant originally claimed damages of $220,076.86 against the respondent which have been or will be sustained in the rectification of the retaining wall and other allegedly defective work.
The parties accept that the Tribunal has the jurisdiction under the HBA to hear and determine the applicant’s claim.
In these Reasons I will refer to the applicant as the ‘owner’ and to the respondent as the ‘builder’,
The proceedings were heard on 5 October 2023. At the hearing the evidence was:

Exhibit A, Tender Bundle of Documents; and

Exhibit B, Joint Memorandum of Conclave.

The parties…

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 37
Decision Date: 13 March 2024

CaseChat Overview and Summary

In Taraschi v Jessop Constructions Pty Limited, the plaintiff, Valerio Taraschi, sought compensation for alleged defects in building work carried out by the defendant, Jessop Constructions Pty Limited. The dispute was brought before the Civil and Administrative Tribunal of New South Wales, where the primary concern was the quality of the building work executed by the defendant. The plaintiff claimed that the defendant's work resulted in significant defects, leading to considerable financial loss.

The central legal issues before the Tribunal involved whether the defendant's actions constituted a breach of section 18D of the Home Building Act 1989, which mandates that building work be carried out with due care and skill. The plaintiff argued that the defendant failed to meet these standards, resulting in defects that required extensive repairs. The defendant, in turn, contended that the defects were either pre-existing or not attributable to their work, and thus, they should not be held liable.

The Tribunal meticulously reviewed the photographic evidence provided by the plaintiff, which depicted the alleged defects. The photographs were deemed sufficient to demonstrate the extent of the defects and the resultant need for remediation. The Tribunal found that the defects were indeed attributable to the defendant's work, establishing a breach of the statutory duty under section 18D. Consequently, the Tribunal ruled in favor of the plaintiff, ordering the defendant to pay the sum of $123,683.25 to cover the costs of the repairs.

Additionally, the Tribunal set out specific procedural orders regarding any potential applications for costs, stipulating timelines for submission and response, and allowing for the possibility of determining such applications on written submissions alone, subject to the parties' consent. This decision underscores the importance of thorough documentation and evidence in disputes concerning building work under the Home Building Act 1989.

Orders

Orders of the court

(1) Jessop Constructions Pty Limited must pay Valerio Taraschi the sum of $123,683.25 immediately.

(2) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

(3) The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on/give to the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

(4) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

(5) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

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:	Taraschi v Jessop Constructions Pty Limited [2024] NSWCATCD 37
Hearing dates:	05 October 2023
Date of orders:	13 March 2024
Decision date:	13 March 2024
Jurisdiction:	Consumer and Commercial Division
Before:	D.Goldstein, Senior Member
Decision:	(1) Jessop Constructions Pty Limited must pay Valerio Taraschi the sum of $123,683.25 immediately. (2) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. (3) The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on/give to the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. (4) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. (5) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.
Catchwords:	BUILDING and CONSTRUCTION – Defective building work – Section 18D of the Home Building Act 1989 – Photographic evidence
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Home Building Act 1989
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCA 144 X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Valerio Taraschi: applicant Jessop Constructions Pty Limited: respondent
Representation:	Solicitors: Albert A Macri Co for the applicant The respondent was represented by its director, Mr Jessop
File Number(s):	2023/00404325 (Previously HB 23/12770)
Publication restriction:	Nil