Abrahams & Anor v Degan [2009] NSWDC 315

New South Wales District Court

CITATION: Abrahams & Anor v Degan [2009] NSWDC 315

HEARING DATE(S): 26/5/09-29/5/09

JUDGMENT DATE: 5 June 2009

JURISDICTION: Civil

JUDGMENT OF: Elkaim SC DCJ

DECISION: See paragraph 55

CATCHWORDS: Statutory building warranties - Applicable limitation period

Home Building Act 1989 LEGISLATION CITED: Home Building Regulations 1997 Limitation Act 1969

Owners Corporation SP64096 v D Olsen Constructions Pty Ltd (Home Building) 2008 NSWCTTT 1053 CASES CITED: Owners Corporation SP66090 v Sydney Commercial Builders Pty Ltd and Anderson (Home Building) 2008 NSWCTTT 1096 Owners Corporation SP61404 v Vero Insurance Ltd (Home Building) 2008 NSWCTTT 996 Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253

PARTIES: Alfred Abrahams and Betty Abrahams (Plaintiffs) Mehran Derakshan Degan (Defendant)

FILE NUMBER(S): 1276/08

COUNSEL: M Dawson (Plaintiffs) J Oakley (Defendant)

SOLICITORS: Vardanega Roberts (Plaintiffs) Baker McDonnell Solicitors (Defendant)

1. In 1999 and 2000 the defendant, as an owner-builder, constructed a large house on Sydney's north shore.

2. In May 2001 he sold it to Mr H and Ms Y. About a year later they sold the house to the plaintiffs. The plaintiffs found a number of defects in the property and made insurance claims. The insurance company, now called Vero, accepted most of the claims and arranged rectification of the defects. Vero, utilising its subrogation rights, now wants the money it spent on rectification from the defendant.

3. The plaintiffs have sued the defendant for breaches of statutory warranties imposed by the Home Building Act 1989 (the "HBA"). In the alternative, the plaintiffs allege the defendant was negligent.