Whittingham v Avid Homes Pty Ltd - [2024] NSWCATCD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Whittingham v Avid Homes Pty Ltd [2024] NSWCATCD 55
Hearing dates: 17 April 2024, 25 June 2024
Date of orders: 24 September 2024
Decision date: 24 September 2024
Jurisdiction: Consumer and Commercial Division
Before: D G Charles, Senior Member
Decision:
(1) A works-order is made pursuant to s 48O(1)(c) of the Home Building Act 1989 NSW, on the terms and conditions as set out in [100] of the Reasons.
(2)   If any party (costs’ applicant) seeks an order for costs, leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 21 days of the date of these orders.
(3)   Leave is granted to the other party (costs’ respondent) to file and serve a short written submission in reply (no more than 5 A4 size pages) within 35 days of the date of these orders.
(4)   The costs’ applicant may file and serve any short written submission (no more than 3 A4 size pages) strictly in response to a costs’ respondent’s submissions within 42 days of the date of these orders.
(5) In any such submissions, the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.

Catchwords:
BUILDING AND CONSTRUCTION – defective residential building work - contractual terms for external cladding – reasonable and necessary scope of works for rectification of defects found – appropriate remedy – preferred outcome - works order made.

Legislation Cited:
Home Building Act 1989 NSW
Civil and Administrative Tribunal Act 2013 NSW
Civil and Administrative Tribunal Rules 2014 NSW

Cases Cited:
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64
Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance [2007] NSWCA 253
Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114
Brewarinna Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361
Galdona v Peacock [2017] NSWCATAP 64
Leung v Alexakis [2018] NSWCATAP 11
The Owners – Strata Plan No 76674 v Di Blasio Constructions Pty Ltd (2014) NSWSC 1087

Texts Cited:
None cited.

Category: Principal judgment
Parties:
David Michael Whittingham (First Applicant)

Janice Whittingham (Second Applicant)
Avid Homes Pty Ltd (Respondent)
Representation:
Counsel:

J Nathan (Respondent)

Solicitors:

Solve Legal (Applicants)
Blackwell Short (Respondent)

File Number(s): 2023/00412213 (previously HB 23/04229)
Publication restriction: Unrestricted

Judgment

Background Facts & Overview of the Matters in Dispute

David Michael Whittingham and Janice Whittingham (referred to, as either the Owners or

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 Whittingham v Avid Homes Pty Ltd

Details

AGLC: Whittingham v Avid Homes Pty Ltd [2024] NSWCATCD 55
Case: [2024] NSWCATCD 55
Decision Date: 24 September 2024

CaseChat Overview and Summary

Whittingham was the owner of a residential property that had been constructed by Avid Homes Pty Ltd. The dispute arose due to defects in the external cladding of the property, leading to a claim for rectification under the Home Building Act 1989 NSW. The primary legal issues involved the interpretation of the contractual terms concerning the scope of works necessary for the rectification of the identified defects. Specifically, the court had to determine what constituted reasonable and necessary works under the circumstances and whether the proposed rectification plan by the builder was adequate.

The court considered the statutory provisions and the contractual terms between the parties. It was established that the defects were significant and required rectification. The court noted that the builder had proposed a plan that included the replacement of the defective cladding. However, the court found that the proposed works did not fully address all the identified defects and did not comply with the statutory requirements for a reasonable and necessary scope of works. Consequently, the court ordered a works-order to ensure that all defects were rectified in a manner that complied with the statutory provisions.

In its orders, the court mandated that a works-order be issued under section 48O(1)(c) of the Home Building Act 1989 NSW, with the terms and conditions as specified in the reasons for the decision. The court also provided a process for the parties to seek costs, allowing for written submissions and considering the possibility of deciding the costs issue on the papers without a hearing. This decision underscores the importance of ensuring that rectification works for defective residential building comply with statutory requirements and contractual obligations.

Orders

Orders of the court

(1) A works-order is made pursuant to s 48O(1)(c) of the Home Building Act 1989 NSW, on the terms and conditions as set out in [100] of the Reasons.

(2) If any party (costs’ applicant) seeks an order for costs, leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 21 days of the date of these orders.

(3) Leave is granted to the other party (costs’ respondent) to file and serve a short written submission in reply (no more than 5 A4 size pages) within 35 days of the date of these orders.

(4) The costs’ applicant may file and serve any short written submission (no more than 3 A4 size pages) strictly in response to a costs’ respondent’s submissions within 42 days of the date of these orders.

(5) In any such submissions, the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.

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:	Whittingham v Avid Homes Pty Ltd [2024] NSWCATCD 55
Hearing dates:	17 April 2024, 25 June 2024
Date of orders:	24 September 2024
Decision date:	24 September 2024
Jurisdiction:	Consumer and Commercial Division
Before:	D G Charles, Senior Member
Decision:	(1) A works-order is made pursuant to s 48O(1)(c) of the Home Building Act 1989 NSW, on the terms and conditions as set out in [100] of the Reasons. (2) If any party (costs’ applicant) seeks an order for costs, leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 21 days of the date of these orders. (3) Leave is granted to the other party (costs’ respondent) to file and serve a short written submission in reply (no more than 5 A4 size pages) within 35 days of the date of these orders. (4) The costs’ applicant may file and serve any short written submission (no more than 3 A4 size pages) strictly in response to a costs’ respondent’s submissions within 42 days of the date of these orders. (5) In any such submissions, the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.
Catchwords:	BUILDING AND CONSTRUCTION – defective residential building work - contractual terms for external cladding – reasonable and necessary scope of works for rectification of defects found – appropriate remedy – preferred outcome - works order made.
Legislation Cited:	Home Building Act 1989 NSW Civil and Administrative Tribunal Act 2013 NSW Civil and Administrative Tribunal Rules 2014 NSW
Cases Cited:	Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272 Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64 Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance [2007] NSWCA 253 Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114 Brewarinna Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361 Galdona v Peacock [2017] NSWCATAP 64 Leung v Alexakis [2018] NSWCATAP 11 The Owners – Strata Plan No 76674 v Di Blasio Constructions Pty Ltd (2014) NSWSC 1087
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	David Michael Whittingham (First Applicant) Janice Whittingham (Second Applicant) Avid Homes Pty Ltd (Respondent)
Representation:	Counsel: J Nathan (Respondent) Solicitors: Solve Legal (Applicants) Blackwell Short (Respondent)
File Number(s):	2023/00412213 (previously HB 23/04229)
Publication restriction:	Unrestricted