The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612

New South Wales Supreme Court

CITATION : The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612

HEARING DATE(S) : 24-28 May, 1&2 June 2010

JUDGMENT DATE : 29 June 2010

JURISDICTION : Equity

JUDGMENT OF : Ward J

DECISION : Plaintiff has established breach of various statutory warranties under Home Building Act. Finding that defendants jointly and severally liable to plaintiff in the sum of $276,581.46 (to be adjusted if necessary in accordance with reasons for judgment). As between defendants, first defendant liable to indemnify second to fourth defendants for all amounts they are liable to pay to plaintiff, other than in relation to installation and commissioning of balancing valves. First defendant therefore liable for $253,352.21 and second to fourth defendants for $23,229.25. Submissions as to costs and quantum to be made before final orders entered.

CATCHWORDS : BUILDING AND CONSTRUCTION - owners corporation claim against developers and builder for breach of statutory warranties - assessment of damages for breach - HELD - various breaches of statutory warranty established - were breaches causative of loss – reasonableness of rectification sought - LIMITATIONS - whether developers' cross-claim against builder was statute barred - HELD - developer's claim for equitable contribution was not statute barred - APPORTIONMENT of liability as between developers and builder

Building Code of Australia Civil Procedure Act 2005 (NSW) Environmental Assessment and Planning Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Environmental Planning and Assessment Regulation 1998 (NSW) Environmental Planning and Assessment Regulation 1994 (NSW) Family Provision Act 1982 (NSW) Federal Court of Australia Act 1976 (Cth) LEGISLATION CITED : Federal Court Rules [1979] (Cth) Home Building Act 1989 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Limitation Act 1969 (NSW) Local Government (Approvals) Regulation 1993 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wrongs Act 1958 (Vic) Wrongs Act 1935 (SA)