Australia: Residential Focus - 20 April 2016

Last Updated: 22 April 2016
Article by Christine Jones and Jarrad McCarthy
Most Read Contributor in Australia, September 2017

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

An owner brought a claim against a builder alleging multiple breaches of the statutory warranties under s18B of the Home Building Act 1989 (Act). The builder attempted to rely on the defence available under s18F of the Act as he claimed that the deficiencies only arose as a result of his compliance with the owner's instructions.

The works which the claim related to concerned a contract to replace a wooden deck. The owner's claim for breach of statutory warranty was in relation to the builder's alleged failure to:

  1. properly advise on and construct a structurally sound façade wall, which subsequently cracked
  2. properly advise on and select a coating that contained a suitable light reflective valve
  3. properly construct and waterproof the deck
  4. properly conceal internal plywood floors, install an appropriate external area underneath the deck or properly seal the wall coating to prevent and avoid efflorescence.

It was alleged that the cause of the cracking in the façade wall was due firstly to the lack of control joints contrary to the manufacturer's recommendations and secondly that the paint colour used had a low light reflective value, also contrary to the manufacturer's recommendations. The builder made submissions that he had simply followed the owner's written instructions to construct the wall in a specific way. The builder sought to rely on s18F of the Act, which allows a defence where the deficiencies arise from instructions given by the person for whom the work was done contrary to the advice in writing of the defendant or person who did the work. The evidence presented to the Tribunal indicated that the builder orally disagreed with the choices of the homeowner, but did not do so in writing.

The Tribunal followed the decision in The Craftsmen Restoration and Renovations v Thomas Boland, Thomas Boland v The Craftsmen Restoration and Renovations [2008] NSWSC 660 where it was held that a defence under s18F is only available where advice from a builder is set out in writing. As it was clear that the builder did not give any written warning about any potential defects in the wall, he was not able to rely on s18F. Consequently the Tribunal ordered that he pay the owner $17,496.05.

In the media

NSW housing approvals continue to fall

The February data on housing approvals indicates a continuing fall in NSW from June 2015, says the Urban Taskforce (06 April 2016) More...

Unlicensed Builder Fined $15,000 And Ordered To Pay $26,000 Compensation

An unlicensed builder who traded falsely through company names including Instyle Developments and First Class Group NSW has been sentenced to a 12 month prison term for fraud and fined $15,000 for four Home Building Act offences and one Australian Consumer Law offence.

(04 April 2016) More...


Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41

Home Building Act – refusal of licence application - fit and proper - relevant industry experience. More...

Gussoni v Wilcox [2016] NSWCATAP 74

Home Building – Building claim - Objections as to evidence allegedly not dealt with by Tribunal – Whether evidence inadmissible – Whether right to cross examine denied – Adequacy of reasons – Whether Tribunal exposed its reasons for resolving points critical to the contest between the parties – Whether Tribunal failed to analyse the applicant's evidence in competition with the respondent's evidence which was apparently accepted – Failure to provide adequate reasons established. More...

Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd; AMP Office & Industrial Pty Ltd v AMP Capital Investors Ltd; ("Schneider v AMP Capital Investors Ltd") [2016] NSWSC 333

TORT – negligence – lift stopping out of level with fixed floor – failure of plaintiff to prove dimension of trip hazard – duty of care owed by a building management company which operated the lifts and occupied the lift foyers – content of the duty – requirement to institute maintenance regime – no breach established PERSONAL INJURY – trip accident alleged to have caused permanent exacerbation of pre-existing cervical spondylosis – incomplete pre-accident history given to post-accident treating specialist – competing diagnosis of unchanged idiopathic pain disorder – permanent exacerbation not proved. More...

The Owners – Strata Plan No 83297 v Eastern Construction Group Pty Ltd [2016] NSWSC 387

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – withdrawal by defendant's solicitor – no appearance by defendant – contract in existence between builder and developer – defects in residential building work result of builder's work – breach of statutory warranties – judgment for plaintiff with costs. More...

Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73

APPEAL – home building contract – lawfulness of contract price adjustment – unfair contracts – adjournment application - duty to offer an adjournment in certain circumstances. More...

The Owners – Strata Plan 82413 v Hinderry [2016] NSWSC 433

INJUNCTIONS – Continuation of asset preservation order first made ex parte – No issue of principle. More...

John Peter Maiolo v Frank Chiarelli and Anor [2016] NSWCATAP 81

APPEAL - Natural Justice - Failure of Tribunal Member to accept a folder of evidence that the appellant intended to rely upon at the hearing. Possibility that a properly conducted hearing would have produced a different result. More...

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

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

Lin v McIntosh [2016] NSWCATCD 6

Home Building, substituted service, owner builder, scope of works, history of section 18B, completion of works. More...

Khodr v Commissioner for Fair Trading [2016] NSWCATOD 45

Fit and proper person - Whether false and misleading information provided – Whether applicant provided false and misleading information – whether guilty of improper conduct – Ability to impose formal conditions under the HB Act. More...

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Christine Jones
Jarrad McCarthy
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