Australia: Residential Focus NSW - 24 May 2017

EK Constructions Pty Ltd v Zhu [2017] NSWCATAP 102

The NSW Civil and Administrative Tribunal (NCAT) Appeal Panel recently considered an appeal by a builder who claimed that the Tribunal had erred in finding that the owner had standing to make a claim for breach of statutory warranties under the Home Building Act 1989 (NSW) (the Act). The builder also claimed that it was denied procedural fairness by the failure to give any weight to its expert evidence.


The builder submitted that the Tribunal made an error of law by hearing the application of the owner as he was not a party to the contract for residential building work.

The facts of this case are such that the owner had entered into the contract with the builder not in his own name, but in the name of a company of which he was a director. This was reflected by the fact that the work order was issued on company letterhead, the quote identified the company as the client and tax invoices were issued to the company rather than the owner in his personal capacity.

The Appeal Panel therefore held that the contract was between the company and the builder.

However, the Appeal Panel looked to section 18D (1A) of the Act in determining that the statutory warranties extended to a non-contracting owner, thereby, granting the owner standing to bring proceedings.

The Appeal Panel also noted that as the statutory warranty had not been previously enforced by the company the exception under section 18D (2) did not apply.

Failure to give weight to expert evidence

The builder contended that the failure to afford weight to their expert evidence amounted to a breach of procedural fairness.

It was submitted that as the expert evidence was deficient in some respects, the Tribunal should have given the builder a short adjournment allowing it to remedy any defects. This submission was grounded in the fact that the builder was not represented by a lawyer, but by a director of the builder.

In response, the Appeal Panel found that there will be no breach of procedural fairness where the Tribunal considers evidence and then decides to afford it little or no weight. Similarly, the Appeal Panel confirmed that the Tribunal is not obliged to offer a party an adjournment in order to provide time for a party to improve their expert evidence. Provided the Tribunal has given the party a reasonable opportunity to deliver expert evidence it has fulfilled its requirements regarding procedural fairness.

The Appeal Panel also reiterated the reasons of the Tribunal for its decision to afford the expert evidence little to no weight. Firstly, it was held that the expert had not complied with the Civil and Administrative Tribunal Expert Code of Conduct. This alone is a sufficient basis for according a report little or no weight. Secondly, it was also held that Tribunal was not satisfied that the opinion of the expert was impartial. In relying on a report that advocated for one party, rather than expressing an impartial view, the Appeal Panel found that it was open to the Tribunal to give significantly reduced weight or no weight to that specific evidence.

The appeal was dismissed.

In the media

MBA: Budget Boost for Housing New economic modelling commissioned by Master Builders Australia forecasts that the $75 billion infrastructure and housing affordability measures announced in the Budget will deliver a substantial 41% boost to the supply and affordability of housing (19 May 2017). More...

Master Builders Australia Federal Budget 2017-18 Master Builders Australia has developed a response to the Federal Budget. The response includes topics such as the economy, housing affordability, infrastructure investment, and jobs (11 May 2017). More...

Federal budget a good balance for housing supply and affordability The Federal Government has achieved a good balance between encouraging more housing supply as well as policies that make housing more affordable, says the urban Taskforce (10 May 2017). More...

Developers welcome Budget's $70 billion infrastructure measures The federal government's new measures to build more infrastructure and make housing more affordable have been welcomed by the development sector. Under the new measures outlined in the 2017-18 Budget released on 9th May, the federal government has allocated $1 billion for critical infrastructure and $70 billion for transport infrastructure (May 2017). More...

Federal budget round-up: how the built environment sector reacted There's been a mixed reaction to the federal budget, with mostly positive responses to a focus on infrastructure spending, mixed responses to housing affordability measures and dismay at the silence on the environment and climate change (10 May 2017). More...

Five-point plan to solve NSW's housing affordability crisis The Property Council will today release a five-point plan to assist the NSW Government solve the housing affordability crisis in NSW. Property Council NSW Executive Director Jane Fitzgerald said the five-point plan is a blueprint for action (12 May 2017). More...


Housing supply responsiveness in Australia: distribution, drivers and institutional settings Rachel Ong et al: Australian Housing and Urban Research Institute 18 May 2017 This study investigated the key drivers of Australian housing supply responsiveness; including price, topographical constraints, climate, existing land uses and planning regulations; and considered policy development options to improve the scale and speed of new housing supply responses. More...

Practice and courts

Senate Inquiry Update Non-conforming building products Status: Accepting Submissions; Date Referred: 11 October 2016; Submissions Close: 01 December 2016; Reporting Date: 25 May 2017.

NSW Planning & Environment: Building System Circulars Safety of awnings over public lands BS 17-001 (10 May 2017).


Wall v Commissioner for Fair Trading [2017] NSWCATOD 76 MERITS REVIEW - Home Building Act 1989 - Individual Contractor Licence – Experience requirements – Referee Statements.

Commissioner for Fair Trading v Younan (No.2) [2017] NSWCATAP 115 APPEAL – Civil and Administrative Tribunal – costs – submissions on issue no longer a matter for decision – special circumstances.

Daoud v Hammoud [2017] NSWCATAP 114 APPEAL – home owners' renewal application in respect of defective and incomplete residential building work – builder's cross application for balance of contract price including variations – adequacy of reasons on particular disputed items - procedural fairness - appeal allowed in part.

3D Design & Build Pty Ltd v Kay [2017] NSWCATAP 110 APPEAL – Home Building Act – renewal proceedings – findings in relation to rectification works – not against weight of evidence – no new evidence has arisen that was not reasonably available in the proceedings under appeal – leave to appeal refused.

Jackson v N K Tiling Pty Ltd [2017] NSWCATAP 106 PROCEDURAL FAIRNESS: rejection of documents not served in accordance with directions and for which no extension of time sought; where party did not understand requirement to seek extension; whether adjournment should have been offered by Tribunal.

Owners Corporation SP 79417 v Trajcevski [2017] NSWCATAP 101 APPEAL – Civil and Administrative Tribunal – inadequate specification of questions of law – appeal dismissed NEGLIGENCE – Owners Corporation – no duty of care HOME BUILDING ACT 1989 – S 3B – proper construction – date of completion LEAVE TO APPEAL – no substantial miscarriage of justice – application for leave dismissed.

EK Constructions Pty Ltd v Zhu [2017] NSWCATAP 102 STATUTORY CONSTRUCTION – Home Building Act 1989 (NSW) s 18D(1A) – residential building work - right of non-contracting owner to claim for breach of statutory warranty EVIDENCE – expert evidence – Tribunal gave expert evidence little or no weight – whether breach of procedural fairness.

Ferguson v Riviera Building & Construction Pty Ltd;; Riviera Building & Construction Pty Ltd v Ferguson [2017] NSWCATCD 16 HOME BUILDING-repudiation and termination of contract, incomplete and defective works, home owners damages, builders damages, quantum meruit claim, interest on damages, liquidated damages, interests of justice served in allowing reopening of case after hearing.


Bills assented to
Gas and Electricity (Consumer Safety) Act 2017 No 15 — Assented to 09 May 2017 See Gas and Electricity (Consumer Safety) Bill 2017.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions