Keogh v Samchris Pty Ltd [2024] NSWCATCD 32

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Keogh v Samchris Pty Ltd [2024] NSWCATCD 32 Hearing dates: 22 and 24 August 2023 Date of orders: 08 March 2024 Decision date: 08 March 2024 Jurisdiction: Consumer and Commercial Division Before: L. Wilson, Senior Member Decision: 1. The respondent must, within six months of these orders: (a) rectify Items 1 – 3, 28, 31, 73 (master bedroom water leak) in accordance with the agreed scope of work plus the additional work set out by the homeowners' expert at CB1755 to 1757. (b) rectify Items 4, 5 – 15, 16 – 18, 27, 33 – 68 in accordance with the agreed scope of works at CB1757, CB1758, CB1761, CB1762. 2. The application is otherwise dismissed. 3. Each party must pay their own costs. 4. If either party wishes to apply for a cost order different to Order 3: (a) they must make that cost application by 29 March 2024. (b) the other party may respond to that application with written submissions filed and served by 19 April 2024. (c) Parties may provide cost submissions in reply if they wish, on or before 26 April 2024. (d) In any cost application or cost submissions, parties must indicate their attitude to the Tribunal deciding the question of costs on the papers (that is, dispensing with a hearing on costs). (e) in the event any party makes an application pursuant to Order 4(a), Order 3 lapses. Catchwords: Home building – Reliance on flawed designs or specifications – Clause 40 contract Home building – s.18F defence Home building – Major defects – preferred outcome Home building – Variations paid by homeowners – Homeowners seeking refund – s.48K(3) Legislation Cited: Home Building Act 1989 (NSW), 3B, 18B, 18E, 18F, 48A, 48K, 48MA Civil and Administrative Tribunal Rules 2014 (NSW) 38 Cases Cited: Akerman v Harvey Norman Designs and Renovations (Home Building) [2007] NSWCTTT 722 David Cameron Jones t/as Oz Style Homes v Panchal [2018] NSWCATAP 238 Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273 Jones v Dunkel (1959) 101 CLR 298 Li v MACD Developments Pty Ltd [2015] NSWCATAP 287 Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 Professional Construction Service Pty Ltd v The Owners - SP 92156 [2023] NSWCATAP 323 S Turnell and W Turnell v Atlantic Construction Pty Ltd [2014] NSWCATCD 89 The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 Category: Principal judgment Parties: Steven John Keogh (first applicant) Jacqueline Mary Keogh (second applicant) Samchris Pty Ltd (respondent) Representation: Counsel: M. Klooster (applicants) J.R.B Pearson (respondents)