Warburton v County Construction (NSW) Pty Ltd [2022] NSWSC 941

Supreme Court New South Wales

Medium Neutral Citation: Warburton v County Construction (NSW) Pty Ltd [2022] NSWSC 941 Hearing dates: 7 – 9 and 14, 17 June 2022 Decision date: 15 July 2022 Jurisdiction: Equity - Technology and Construction List Before: Black J Decision: Parties to be allowed opportunity to reach agreement as to costs of rectification as to limited issues where liability established, or make further submissions. Parties also to make submissions as to costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION — Contract — Damages — Defects — Where plaintiff homeowners initially contracted with the defendant builder for the construction of a residential home — Where parties entered into a second agreement by which the plaintiffs took responsibility for the payment of subcontractors and materials, and the defendants undertook to carry out all the work reasonably necessary to manage and supervise the completion of the works — Where the second agreement also included a mutual release — Where plaintiff alleges there are defects with the construction of the home —Whether defects arose from work done prior to or after the second agreement — Whether defects arising from work done after the second agreement resulted from a failure by the defendant to carry out all the work reasonably necessary to manage and supervise the completion of the works — Whether any statutory warranties under the Home Building Act 1989 (NSW) were breached by the defendants Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 58-58, s 60, s 64. - Home Building Act 1989 (NSW), s 18B, s 18E, s 18G. Cases Cited: - Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd v CSR Ltd [2001] NSWSC 324 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27 - Australia City Properties Management Pty Ltd v Owners - Strata Plan No 65111 [2021] NSWCA 162 - Bank of Credit & Commerce International SA (in liq) v Ali [No 1] [2002] 1 AC 251 - Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 - Cappello v Hammond and Simonds NSW Pty Ltd [2020] NSWSC 1021 - Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 - D & F Estates Ltd v Church Commissioners for England [1989] 1 AC 177 - Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 - Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 - Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 - Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 - Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 - Hampton Court Ltd v Crookes (1957) 97 CLR 367; [1957] HCA 28 - Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114 - Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 - Metropolitan Fire and Emergency Services Board v Yarra City Council (2015) 214 LGERA 1; [2015] VSC 773 - Oikos Constructions Pty Ltd v Oston [2020] NSWCA 358 - Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd (No 2) [2012] NSWSC 322 - P Ward Civil Engineering Pty Ltd v Civil and Civic Pty Ltd [1999] NSWSC 727 - Re Graziers Pastoral Pty Ltd [2021] NSWSC 1680 - Roberts v Jandson Pty Ltd (Homebuilding) [2011] NSWCTT 105 - Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 - Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 - SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 - Sheldon v McBeath (1993) Aust Torts Reports 81-209 - Sutcliffe v Chippendale & Edmonson (A Firm) [1971] 18 BLR 149 - The Owners – Strata Plan 6511 v Meriton Apartments Pty Ltd [2016] NSWSC 909 - The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 - UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77; [2018] HCA 45 Category: Principal judgment Parties: Mark Warburton (First Plaintiff/First Cross-Defendant) Jacqueline Warburton (Second Plaintiff/Second Cross-Defendant) County Construction (NSW) Pty Ltd (First Defendant/Cross-Claimant) Robert Daryl Hart (Second Defendant) Representation: Counsel: F Hicks SC/B Anderson (Plaintiffs/Cross-Defendants) M Klooster/F Clark (Defendants/Cross-Claimant)