Woolley v Johns and Rogers Pty Limited

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Woolley v Johns & Rogers Pty Limited [2016] NSWCATCD 16

Hearing dates:

12 November 2014 and 2 April 2015

Decision date:

12 February 2016

Jurisdiction:

Consumer and Commercial Division

Before:

T Simon Senior Member

Decision:

1. The respondent is to pay the applicant the sum of $17,496.05 immediately

 

2. In the event that either party intends to make an application for costs, the applicant is to provide any documents and submissions in relation to costs to the respondent and the Tribunal, either in person or by post by 26 February 2016.

 

3. The respondent is to provide any documents and submissions in relation to costs to the applicant and the Tribunal, either in person or by post on 18 March 2016.

 4. The issue of costs will be decided on the papers. In the event that the parties wish to be heard in person they must advise the Tribunal on or before 26 February 2016.

Catchwords:

Home Building, scope of work, s 18F defence, breach of statutory warranty

Legislation Cited:

Building Services Corporation Legislation Amendment Act 1996 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:

Pham v Broadview Windows Pty Ltd & Ors [2009] NSWCTTT 375
The Craftsmen Restoration and Renovations v Thomas Boland; Thomas Boland v The Craftsmen Restoration and Renovations [2008] NSWSC 660

Category:

Principal judgment

Parties:

Pat Woolley (applicant)
Johns & Rogers Pty Ltd (respondent)

Representation:

Counsel: D Hand for the respondent
Solicitors: A Adams of Mayweathers for the applicant
P Adam of Adams Partners Lawyers for the respondent

File Number(s):

HB 14/19858

Publication restriction:

Nil

Reasons for Decision

1. This is application was made by the homeowner on 11 April 2014. The applicant was initially seeking an amount of $77,800.00 for breach of statutory warranties pursuant to s 18B of the Home Building Act 1989 (NSW) (HBA). By the time the matter came for hearing the amount claimed by the homeowner was $80,018.70.

Background to the Matter

2. It is not in dispute that the parties contracted in February 2011. The works largely related to replacement of a wooden deck. The contract appears to have been partly in writing (emails and a quote) and partly oral, but in any case, did not comply with the form prescribed by section 7 of Home Building Act 1989 (NSW) (the Act).

3. The applicant’s claims for breach of statutory warranty relates to the following:

1. failing to properly advise on and construct a structurally sound facade wall;

2. failing to properly advise on and select a coating that contained a suitable light reflective valve;

3. failing to properly construct and waterproof the deck

4. failing to properly staying concealed internal plywood floors failing to advise on and install an appropriate external bought the area underneath the deck and failing to properly seal the wall coating to prevent and avoid efflorescence.

Jurisdiction of the Tribunal

4. The parties agree that the contract in relation to the works was partly written and partly oral. However, they disagree on the…