The Owners Strata Plan 80867 v Da Silva - [2024] NSWDC 263

District Court

New South Wales

Amendment notes

Medium Neutral Citation: The Owners – Strata Plan 80867 v Da Silva [2024] NSWDC 263
Hearing dates: 16 – 19 October 2023
Date of orders: 5 July 2024
Decision date: 05 July 2024
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision:
(1) Judgment for the plaintiff against the first defendant in the sum of $317,707.93.
(2) List the matter for directions before me at 9:30 AM on Friday 12 July 2024.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 - contract to undertake residential building work– non est factum – purported oral variation to scope of works - waterproofing - failure to comply with Australian Standard and Building Code of Australia
BUILDING AND CONSTRUTION – Statutory duty of care under s37 of Design and Building Practitioners Act 2020 – waterproofing - failure to comply with Australian Standard and Building Code of Australia

Legislation Cited:
Civil Liability Act, 2002
Design and Building Practitioners Act 2020.
Home Building Act 1989
Home Building Regulation 2004
Uniform Civil Procedure Rules

Cases Cited:
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298
Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group [2024] NSWCA 143
Kuhl v Zurich Financial Services (2011) 234 CLR 361
Paraiso v CBS Build Pty Ltd [2020] NSWSC 190
Petelin v Cullen (1975) 132 CLR 355
Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557
The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301
TheOwners-Strata Plan Number 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068
Watson v Foxman (1995) 49 NSWLR 315
Xu v Jinhong Design & Construction Pty Ltd [2011] NSWCA 277

Texts Cited:
Cross on Evidence by the Hon J D Heydon AC

Category: Principal judgment
Parties: The Owners – Strata Plan 80867 (Plaintiff)
John Da Silva (First Defendant)
Representation:
Counsel:
Mr W Marshall (Plaintiff)
Mr V Gray (First Defendant)
Solicitors:
Swaab (Plaintiff)
Corporate & Civil Legal (First Defendant)

File Number(s): 2021/190339
Publication restriction: Nil

Judgment

The plaintiff is the Owners Corporation for the strata scheme of the “Lamia” building at 276 – 278 Marrickville Road, Marrickville in New South Wales. Some of the lots in the building are commercial, some are residential. The strata plan was registered on 30 July 2008.
Mr Da Silva, the first defendant, is a tiler and waterproofer. He and tradesmen working under his supervision removed and replaced the tiles on the common balcony terrace for units 301, 302 and 303 (some of the residential lots) between late July 2014 and early April 2015. Each of the units has aluminium sliding doors giving access to the same common balcony terrace.
The Owners Corporation complains that the work Mr Da Silva did and supervised was defective. It says that as a result of the work, water enters units 301, 302 and 303 from…

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] NSWDC 263
Decision Date: 05 July 2024

CaseChat Overview and Summary

In the matter of The Owners Strata Plan 80867 versus Da Silva, the Supreme Court of New South Wales was tasked with adjudicating a dispute arising from a contract for residential building work. The plaintiff, The Owners Strata Plan 80867, sought damages against the first defendant, Da Silva, for failure to properly execute waterproofing works, which allegedly did not comply with the Australian Standard and Building Code of Australia. The dispute centred on an oral variation to the original contract that purportedly altered the scope of the waterproofing works.

The legal issues before the court involved whether the oral variation to the contract was valid and binding, and if the defendant had breached statutory duties under the Home Building Act 1989 and the Design and Building Practitioners Act 2020 by failing to adhere to the specified standards. The plaintiff contended that the defendant had not only failed to perform the waterproofing works to the required standards but also had not obtained the necessary approvals for the variation to the original contract scope. The court was required to determine the enforceability of the oral variation, the compliance with statutory obligations, and the extent of any liability for damages.

The court found that the oral variation to the contract was not valid as it was not in writing and had not been signed by the parties. Consequently, the defendant was held liable for the failure to comply with the waterproofing requirements. The court emphasised that the statutory duty of care under the Design and Building Practitioners Act 2020 required adherence to the Australian Standard and Building Code of Australia, which the defendant had not met. Based on these findings, the court awarded damages to the plaintiff in the amount of $317,707.93, reflecting the cost of rectifying the defects and other related losses.

The court further ordered that the matter be listed for directions at 9:30 AM on Friday 12 July 2024, providing an opportunity for the parties to discuss any further steps in the litigation process. This order aimed to facilitate a structured approach to any remaining issues that may need to be addressed between the parties.

Orders

Orders of the court

(1) Judgment for the plaintiff against the first defendant in the sum of $317,707.93.

(2) List the matter for directions before me at 9:30 AM on Friday 12 July 2024.

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:	The Owners – Strata Plan 80867 v Da Silva [2024] NSWDC 263
Hearing dates:	16 – 19 October 2023
Date of orders:	5 July 2024
Decision date:	05 July 2024
Jurisdiction:	Civil
Before:	Waugh SC DCJ
Decision:	(1) Judgment for the plaintiff against the first defendant in the sum of $317,707.93. (2) List the matter for directions before me at 9:30 AM on Friday 12 July 2024.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 - contract to undertake residential building work– non est factum – purported oral variation to scope of works - waterproofing - failure to comply with Australian Standard and Building Code of Australia BUILDING AND CONSTRUTION – Statutory duty of care under s37 of Design and Building Practitioners Act 2020 – waterproofing - failure to comply with Australian Standard and Building Code of Australia
Legislation Cited:	Civil Liability Act, 2002 Design and Building Practitioners Act 2020. Home Building Act 1989 Home Building Regulation 2004 Uniform Civil Procedure Rules
Cases Cited:	Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 Fox v Percy (2003) 214 CLR 118 Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298 Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group [2024] NSWCA 143 Kuhl v Zurich Financial Services (2011) 234 CLR 361 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Petelin v Cullen (1975) 132 CLR 355 Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557 The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301 TheOwners-Strata Plan Number 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068 Watson v Foxman (1995) 49 NSWLR 315 Xu v Jinhong Design & Construction Pty Ltd [2011] NSWCA 277
Texts Cited:	Cross on Evidence by the Hon J D Heydon AC
Category:	Principal judgment
Parties:	The Owners – Strata Plan 80867 (Plaintiff) John Da Silva (First Defendant)
Representation:	Counsel: Mr W Marshall (Plaintiff) Mr V Gray (First Defendant) Solicitors: Swaab (Plaintiff) Corporate & Civil Legal (First Defendant)
File Number(s):	2021/190339
Publication restriction:	Nil