The Owners - Strata Plan No 97315 v Icon Co (NSW) Pty Ltd

The Owners - Strata Plan No 97315 initiated proceedings against Icon Co (NSW) Pty Ltd, the builder of a residential tower, due to defective sunshades on the façade. The dispute involved the identification of the proper rectification method for the inadequate sunshades, which was referred to a referee for determination. The referee found that the builder was liable for the structurally inadequate sunshades and assessed the proposed rectification methods. Ultimately, the referee concluded that the C Bracket Solution was the proper method of rectification.

The legal issues before the court were whether the referee misconstrued the contract in finding that the C Bracket Solution would achieve conformity with the contract and whether the referee's findings concerning the visibility of the brackets were perverse or based on a failure to understand the evidence. The court was also required to determine if it was appropriate to exercise its discretion to reject or vary the referee's report.

The court found that the referee made no error of principle in reaching his conclusions. The referee's findings of fact were clearly open to him, and there was no basis for the court to conclude that the referee's findings were perverse or that he had failed to understand the evidence. Given that the referee had considered the evidence and the contract, and had reached his conclusions on a proper basis, the court held that it was not appropriate to exercise its discretion to reject or vary the referee's report. Consequently, the motion was dismissed.

The court's final orders were to dismiss the motion brought by the Owners - Strata Plan No 97315, affirming the referee's conclusions regarding the proper rectification method for the defective sunshades and the builder's liability.