BlueSky Property Builders Australia Pty Ltd v Dey [2023] NSWCATAP 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BlueSky Property Builders Australia Pty Ltd v Dey [2023] NSWCATAP 153 Hearing dates: 4 April 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member K Ransome, Senior Member Decision: (1) Application for leave to appeal refused. (2) Appeal dismissed. (3) The appellant is to pay the respondent's costs of and incidental to the appeal, as agreed or assessed, excluding any costs incurred in relation to the preparation, filing and service of the affidavit of Subrata Dey dated 24 March 2023. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranty – Defences – Section 18F – Whether plans and specifications constitute an "instruction given in writing" for the purposes of s 18F. BUILDING AND CONSTRUCTION – Defective building work – Assessment of damages – Consequential loss – Cost of alternative accommodation while rectification work being undertaken – First limb in Hadley v Baxendale – Loss flowing naturally from the builder's breach of statutory warranty. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Section 48MA preferred outcome – Not inappropriate to take into account the builder's failure to follow an instruction from the private certifier. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Mendonca v Tonna [2017] NSWCATAP 176 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 RBV Builders Pty Ltd v Chedra [2021] NSWCATAP 56, The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and Frasers Putney Pty Ltd [2019] NSWCATCD 63 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Nil Cited Category: Principal judgment Parties: BlueSky Property Builders Australia Pty Ltd (Appellant) Subrata Dey (Respondent) Representation: Solicitors: Bannermans (Respondent) File Number(s): 2023/00039392 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 09 January 2023 Before: M Tyson, Senior Member File Number(s): HB 21/31317 and HB 22/07340