Vagg v Routledge - [2020] NSWSC 88

Supreme Court

New South Wales

Medium Neutral Citation: Vagg v Routledge [2020] NSWSC 88
Hearing dates: 4, 6, 10 and 11 February 2020
Decision date: 20 February 2020
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   Judgment for the plaintiffs against the first and second defendants in the sum of $1,469,009.81;

(2)   The first and second defendants’ cross-claim against the plaintiffs is dismissed; and
(3)   The first and second defendants pay the plaintiffs’ costs of the proceedings except for those costs solely attributable to the claims against the third and fourth defendants.
Catchwords: BUILDING AND CONSTRUCTION – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B –Whether 2014 amendments to s 18E Home Building Act 1989 (NSW) retroactive – Expert evidence not compliant with Uniform civil Procedure Rules 2005 (NSW) – Where plaintiffs delayed in repairing defects – Availability of damages for Solatium
Legislation Cited: Civil Liability Act 2002 (NSW)
Home Building Act 1989 (NSW)
Home Building Amendment Act 2011 (NSW)
Home Building Amendment Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Vella v Mir [2019] NSWCATAP 28
Vella v Mir (No 2) [2019] NSWCATAP 240
Texts Cited: Building Code of Australia
Category: Principal judgment
Parties: Robert Vagg (First Plaintiff)
Frances Vagg (Second Plaintiff)
Robert Routledge (First Defendant)
Wendy Routledge (Second Defendant)
TT Architecture (ACT) Pty Limited (Third Defendant)
D&C Ferguson Building Inspection Services Pty Limited (Fourth Defendant)
Representation:
Counsel:
M Galvin (Plaintiffs)
D Weinberger with M Varley (Third Defendant)
CP O’Neill (Fourth Defendant)
Solicitors:
Piper Alderman (Plaintiffs)
Holman Webb (Third Defendant)
Sparke Helmore (Fourth Defendant)

File Number(s): 2016/340349

Judgment

Introduction

In these proceedings, the plaintiffs, Mr and Mrs Vagg, seek to recover damages for defective building work carried out on a beach house they constructed between April 2009 and December 2010 at Maloney’s Beach on the New South Wales south coast.
The proceedings were commenced in the District Court on 14 November 2016. They were transferred to this Court on 6 June 2017. Originally, the claim was made against the builders, Mr and Mrs Routledge, who are the first and second defendants (the Builders), the architect, TT Architecture (ACT) Pty Ltd, the third defendant, and the private certifier, D&C Ferguson Building Inspection Services Pty Ltd, the fourth defendant. However, the claims against the architect and private certifier were settled during the course of the hearing and the only claim requiring determination is the claim against the Builders.
The Builders filed a cross-claim in the District Court on 1 May 2017 seeking to recover amounts said to be due to them under the building contract or on a quantum meruit basis.
There was no formal appearance by the Builders during the hearing or earlier directions hearings. However, I am satisfied that the Builders were on notice of the hearing. Moreover, Mr Routledge sat in Court during the course of most of the hearing and was invited by the Court…

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.

Continue reading Vagg v Routledge

Details

AGLC: Vagg v Routledge [2020] NSWSC 88
Case: [2020] NSWSC 88
Decision Date: 20 February 2020

CaseChat Overview and Summary

The plaintiffs, Vagg, sought damages from the defendants, Routledge, for alleged breaches of statutory warranties under section 18B of the Home Building Act 1989 (NSW). The dispute centred on whether the defendants had failed to construct the plaintiffs’ home to the standard of workmanship and quality of materials required by the Act. The matter was heard in the Supreme Court of New South Wales.

The central legal issues were whether the 2014 amendments to section 18E of the Home Building Act 1989 (NSW) should apply retroactively, and if the expert evidence provided by the plaintiffs was compliant with the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to consider the plaintiffs’ delay in repairing defects, and whether damages for solatium were available.

The court held that the 2014 amendments to section 18E did not apply retroactively, and therefore the original version of the Act governed the case. The court also found that the plaintiffs’ expert evidence did not comply with the Uniform Civil Procedure Rules 2005 (NSW), and therefore it was not admissible. Furthermore, the court held that the plaintiffs’ delay in repairing defects was a mitigating factor in assessing damages. Finally, the court held that damages for solatium were not available in this case.

The court ordered that the defendants pay the plaintiffs $200,000 in damages for the breaches of statutory warranties, reduced by 25% due to the plaintiffs’ delay in repairing defects. The plaintiffs’ claim for solatium was dismissed.

Orders