Metricon Homes Pty Ltd as trustee for Metricon Homes Unit Trust v Lipari [2024] NSWSC 566

Supreme Court New South Wales

Medium Neutral Citation: Metricon Homes Pty Ltd as trustee for Metricon Homes Unit Trust v Lipari [2024] NSWSC 566 Hearing dates: 8-11 April 2024 Date of orders: 16 May 2024 Decision date: 16 May 2024 Jurisdiction: Equity - Technology and Construction List Before: Nixon J Decision: See [401] Catchwords: BUILDING & CONSTRUCTION – plaintiff constructed house for defendant – plaintiff sued defendant for unpaid balance of contract price – defendant claimed entitlement to set-off for defects and brought cross-claim against plaintiff and against structural engineer – whether defects established – extent of defects – consequences of defects – proper measure of damages CONSUMER LAW – misleading or deceptive conduct – claim arose from communications concerning location of swimming pool - whether pleaded representations were made – whether representations were as to future matters or representations of opinion – whether representations were misleading – whether any loss or damage was suffered because of the representations Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 4, 18 Design and Building Practitioners Act 2020 (NSW), s 37 Home Building Act 1989 (NSW), s 18B State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 3.29 Cases Cited: Australian Competition and Consumer Commission v Woolworths Group Ltd (2020) 281 FCR 108; [2020] FCAFC 162 Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 Bateman v Slatyer (1987) 71 ALR 553 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361 Building Insurers' Guarantee Corporation v The Owners – Strata Plan No 57504 [2010] NSWCA 23 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; [2019] NSWCA 307 Kirkby v Coote [2006] QCA 61 Lin v Zheng [2023] NSWCA 174 North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1 Owners SP 92450 v JKN Para 1 Pty Ltd [2023] NSWCA 114 Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 The Owners of Strata Plan No 97315 v Icon Co (NSW) Pty Ltd [2023] NSWCA 303 Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253 Category: Principal judgment Parties: Metricon Homes Pty Ltd as trustee for Metricon Homes Unit Trust (Plaintiff/ First Cross-Defendant on First Cross-Claim/ Cross-Claimant on Second Cross-Claim) Antonia Lipari (Defendant/ Cross-Claimant on First Cross-Claim) Rafeletos Zanuttini Pty Ltd (Second Cross-Defendant on First Cross-Claim, Cross-Defendant on Second Cross-Claim) Representation: Counsel: D Hume (Plaintiff/ First Cross-Defendant on First Cross Claim/ Cross-Claimant on Second Cross-Claim) J O'Connor with D Thomas (Defendant/ Cross-Claimant on First Cross-Claim) B Le Plastrier (Second Cross-Defendant on First Cross-Claim, Cross-Defendant on Second Cross-Claim)