Pastrovic & Co Pty Ltd v Farrington [2011] NSWDC 94

District Court New South Wales

Medium Neutral Citation: Pastrovic & Co Pty Ltd v Farrington [2011] NSWDC 94 Hearing dates: 7 July 2011 Decision date: 11 August 2011 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Appeal partly allowed Catchwords: CTTT - appeal from a decision of the CTTT in relation to a building dispute - whether there was any error on a question with respect to a matter of law - adequacy of reasons - failure by Tribunal to consider and if appropriate apply the proportionate liability provisions in the Civil Liability Act 2002 Legislation Cited: Civil Liability Act 2002 Consumer, Trader & Tenancy Tribunal Act 2001 Home Building Act 1989 Cases Cited: Beale v Government Insurance Office of New South Wales [1977] 48NSWLR 430 Eastside Scaffolding v Kazic [2008] NSWCA 148 Levy v Bergseng [2008] NSWSC 294 Permanent Custodians Limited v King [2010] NSWSC 509 VCT v JM [2011] NSWCA 89 Category: Principal judgment Parties: Pastrovic & Co Pty Limited (Plaintiff) Bernard Joseph Farrington (Defendant) Representation: Ms M Fraser of counsel (Plaintiff) Mr M F Galvin of counsel (Defendant) MBA Lawyers (Mr Collins) RMB Lawyers (Ms J Bennett) File Number(s): 2010/00126416 Publication restriction: None

Judgment 1The defendant was the owner of a house constructed by the plaintiff, a builder. On 16 June 2007, following heavy rain, the retaining walls constructed by the builder at the rear of the premises failed to contain the slope behind, with the result that there was significant slumping of soil into the rear of the premises. 2This appeal concerns the decision of a member of the Consumer Trader and Tenancy Tribunal (the Tribunal) on 29 April 2010 in relation to the construction of the retaining walls in which he decided that the builder was liable to the owner for the damage caused. 3The Tribunal held that the builder had failed to comply with statutory warranties under the Home Building Act 1989 , and that the builder was negligent in its construction of the retaining walls. 4The house had been constructed pursuant to a contract between the builder and the owner's predecessor in title, Berkeley Road Developments Pty Limited, which company sold the house to the owner prior to the land slump episode on 16 June 2007. 5The owner alleged that the retaining walls did not comply with the specifications in the contract and that they were not suitable for the purpose of retaining the material behind them, especially after the builder had carried out excavation work into a highly reactive site. 6The builder complains that the Tribunal member wrongly decided various questions with respect to matters of law. 7The grounds of appeal are set out in the Summons Commencing an Appeal. They will be addressed in turn.