Australia: Residential Focus - 15 June 2016

Last Updated: 21 June 2016
Article by Hilary Yeoh
Most Read Contributor in Australia, September 2017

Builder prefers damages over work order

In the matter of Porthaze Pty Limited v Friend [2016] NSWCATCD 31, the Tribunal considered the appropriateness of making a work order under section 48MA of the Home Building Act 1989 (NSW) (Act).

The contractor claimed to be owed money under the contract, whereas the owners claimed that the contractor had not performed the work in a proper and workmanlike manner.

Section 48MA of the Act provides that rectification of the defective work by the responsible party is the preferred outcome in proceedings determining a building claim involving an allegation of defective residential building work or specialist work.

The Tribunal ordered that the contractor pay damages for breaches of the contract or s 18B of the Act instead of carrying out the rectification works pursuant to a work order under s 48MA. In reaching its decision, the Tribunal balanced the principle that rectification of the defective work by the responsible party is the preferred outcome against evidence that:

  1. people had attended the owners' property a number of times to install and undertake rectification works; and
  2. the contractor's manager and staff had no wish to return to the site because of the persistent hostile and rude comments and constant interruptions, criticisms and directions of the owners and indeed the contractor submitted that it would rather pay rectification damages than return to the owners' property because of the difficulties experienced.

A further issue was argued by the contractor that because the utility of the kitchen had not been diminished by the defects, no material damage arose. The Tribunal confirmed that this was not relevant to the question of whether there had been a breach of a statutory warranty. In other words, if the owners established a breach of a statutory warranty or if the contractor's expert conceded that a defect existed, damage would be assessed as arising out of the breach, as opposed to the material damage arising due to the diminished utility of the item.

In the media

MBA: Building approvals defy expectations

Building approvals are up for the second month in a row off the back of increases in units – proof that there's still no sign of waning demand for units. According to the latest ABS figures, April approvals for units increased by 20.1 per cent over the month from 2,336 to 2,806 (seasonally adjusted) – up 22.5 per cent over the year (01 June 2016). More...

$1.5 million tall timber buildings research grant awarded

Hyne Timber, in partnership with the University of Queensland, has welcomed the announcement of more than $1.5 million funding for tall timber buildings research (31 May 2016). More...

Huge risks for off-the-plan apartment buyers

A businessman who lost more than $15 million in an off-the-plan penthouse purchase is warning ordinary apartment buyers to be aware they can lose much more than their deposit if they break the contract (26 May 2016). Huge risks for off-the-plan apartment buyers

Boost to housing pipeline: Home approvals jump by 10 per cent

NSW's housing supply will soon receive a big boost after the ABS confirmed that building approvals rose by more than 10 per cent in April –extending the string of recent record highs (31 May 2016). 31 May 2016: Boost to housing pipeline: Home approvals jump by 10 per cent

Urban Taskforce: Intergenerational report highlights the need to change urban structures in NSW

The Intergenerational Report released by the NSW Treasurer highlights major changes over the next 40 years that will affect our urban areas, says the Urban Taskforce (26 May 2016). Intergenerational report highlights the need to change urban structures in NSW

Fair Trading Hammers Dodgy Builders

A crack down on unfair business practices has reaped more than $650,000 in fines and penalties over three months, with unlicensed tradespeople dominating the list of wrong-doers (25 May 2016). More...


Australian Bureau of Statistics

Building Approvals, Australia, Apr 2016 (cat no. 8731.0) – 31 May 2016.

Construction Work Done, Australia, Preliminary, Mar 2016 (cat no. 8755.0) – 25 May 2016.

Practice and courts

LGNSW: Loose-fill Asbestos Insulation Regulatory Amendments

Additional requirements for managing loose fill asbestos insulation are now in place and more will take effect this year, including a requirement for councils in relation to section 149 certificates. See also Fair Trading NSW (25 May 2016). Loose-fill Asbestos Forums Continue throughout Southern NSW

NSW BPB: New disciplinary case studies

Two new disciplinary case studies have been published. Each is based on a complaint considered by the Board's Disciplinary Committee and offers important lessons for certifiers (31 May 2016). New disciplinary case studies

NSW BPB: May 2016 e-news

The e-news is a regular digest of work by the Board, legislative updates, events, training and consultation opportunities (31 May 2016). Read our May 2016 e-news

NSW: Register loose fill asbestos properties

Property owners whose homes have been affected by loose-fill asbestos insulation have until August to register with the Fair Trading Loose-Fill Asbestos Insulation (LFAI) taskforce. Register loose fill asbestos properties


Jing Sun v Jun Li; Jun Li v Jing Sun [2016] NSWCATAP 112

APPEAL: leave to appeal; no issues of principle HOME BUILDING ACT: Home Warranty Insurance; whether insurance for full contract price PROCEDURAL FAIRNESS: where Tribunal overlooked issue of costs of proceedings. More...

Porthaze Pty Limited v Friend [2016] NSWCATCD 31

Defects, Work order. More...

Withers v Alexander [2016] NSWCATCD 28

Incomplete work, defective work. More...

Jensen v Bartels [2016] NSWCATCD 27

Residential building work; termination of contract; incomplete work; defective work; consequential loss; costs. More...

Dinh v Commissioner for Fair Trading [2016] NSWCATOD 72

FIT and proper person - Whether false and misleading information provided – Whether applicant provided false and misleading information – Whether purpose of Act is to punish or protect – Civil penalty following criminal penalty. More...

Peace v McIntosh Electrical Pty Ltd [2016] NSWCATAP 117

Appeal, Civil & Administrative Tribunal (NSW) – Consumer and Commercial Division – internal appeal – error of law – Standing – Home building jurisdiction – consumer claim –specialist work. More...

Agdiran v Owners Corporation SP83475 (No.2) [2016] NSWCATAP 119

COSTS – no special circumstances. More...



Home Building Amendment (Loose-fill Asbestos Insulation) Regulation 2016 (2016-264) — published LW 27 May 2016

Statute Law (Miscellaneous Provisions) Act 2016 (NSW) – assented 7 June 2016. More...

For the full text of Bills, and details on the passage of Bills, see Bills.

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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Hilary Yeoh
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