B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271 Hearing dates: 25 January 2021, 19 March 2021 Date of orders: 13 September 2021 Decision date: 13 September 2021 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member D Robertson, Senior Member Decision: (1) Appeal allowed in part. (2) Grant leave to appeal to the extent necessary in relation to the award of $9,240 in respect of the costs of scaffolding. (3) Vary Order (1) made on 2 October 2020 by changing the sum of $50,771.69 to the sum of $17,980. (4) Set aside Order (2) made on 2 October 2020. (5) The stay of the orders made by the Tribunal on 2 October 2020, granted by the Appeal Panel on 4 November 2020, is lifted. (6) Any application by either party for an order in relation to the costs either of the proceedings at first instance or of the appeal, with evidence and submissions in support of the application, is to be filed and served within 14 days of the date of these orders. (7) Any evidence and submissions in response to any application filed in accordance with Order (6) are to be filed and served within a further 14 days. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory Warranties – Duty to mitigate loss – Section 18BA – Duty to provide access – Extent of duty to provide access to attempt rectification of defective windows which had previously been removed and replaced – Breach of statutory warranties – Measure of compensation – Onus lies on applicant to establish that building costs incurred were required in order to bring the work into conformity with the contract Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613 Collins v Urban [2014] NSWCATAP 17 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 11 NSWLR 389 Jones v Dunkel (1959) 101 CLR 298 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: B & W Windows (Residential) Pty Ltd (Appellant) Carl Dominic Sibilia & Renee Horgan (Respondents) Representation: Counsel: R Dalgleish (Appellants)