Rich v Fair Trading Administration Corporation [2000] NSWFTT 10

Fair Trading Tribunal New South Wales

CITATION: Rich v Fair Trading Administration Corporation [2000] NSWFTT 10 DIVISION: Home Building Division PARTIES: APPLICANT: Mr Rich RESPONDENT: Fair Trading Administration Corporation FILE NUMBER: BU 1999/1414 HEARING DATES: 14/8/2000; 15/8/2000 & 5/10/2000 SUBMISSIONS CLOSED: DATE OF DECISION: 23/11/2000

BEFORE: PH Molony Senior Member Fair Trading Tribunal Act 1998 Home Building Act 1989 - ss39(2) 88 LEGISLATION CITED : 91 Building Services Corporation Act 1989 Building Services Corporation Regulation 1990 - cl 3(1)(a) & (b) 4 & 31 - Penn v Fair Trading Administration Corporation (2000) NSWFTT 5 CASES CITED: - PQ v Australian Red Cross Society (1992) 1 VR 19 - Ramsay v Watson (1961) 108 CLR 642 CATCHWORDS: Appeal against the decline of an insurance claim by the Fair Trading Administration Corporation - Building Services Corporation Comprehensive Insurance Scheme cl 5(1) - jurisdiction of the Tribunal - type of defects - major structural or general defects - single skin wall - Expert evidence - weight MATTER FOR DECISION: The primary application REPRESENTATION: APPLICANT: Mr A Searle of Counsel instructed by Carmody Crampton, Solicitors, Young RESPONDENT: Ms E Kennedy of Counsel instructed by the Solicitor for the Department of Fair Trading 1) I find that: a) the cracking to the external walls is a major structural defect under sub-clause (b) of the definition of major structural defect in Clause 31of the Building Services Corporation Regulation 1990. Those defects are both inherent from the manner in which the walls and the house were constructed and damage induced as a result of that faulty construction. b) the cracking in the external walls is a major structural defect under sub-clause (a) of the definition of major structural defect in Clause 31 of the Building Services Corporation Regulation 1990 ORDERS: resulting from the walls being inadequately stressed. Those defects are both inherent from the manner in which the walls and the house were constructed and damage induced as a result of that faulty construction. c) the numerous defects in stressing the walls by means of the tie down rods and top plates as specified in Mr Rendell's report of 3 October 2000 together constitute a major structural defect under sub-clause (a) of the definition of major structural defect in Clause 31 of the Building Services Corporation Regulation 1990. Those defects are inherent. 2) I direct that the application be listed for a telephone directions hearing before me at 4pm on 21 December 2000 so that directions can be made with respect to the further conduct of the application.