Owners Corporation SP 74584 v Sezone [2013] NSWSC 999

Supreme Court New South Wales

Medium Neutral Citation: Owners Corporation SP 74584 v Sezone [2013] NSWSC 999 Hearing dates: 24/07/2013 Decision date: 24 July 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Judgment for plaintiff against defendant in the sum of $855,479.00 Catchwords: DAMAGES - assessment of damages for defective building work - no question of principle. Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Owners Corporation SP 74584 (Plaintiff) Sezone Pty Ltd (Defendant) Representation: Counsel: P J Bambagiotti (Plaintiff) Solicitors: Grace Lawyers (Plaintiff) File Number(s): 2013/21733

Judgment (ex tempore - revised 24 july 2013) 1HIS HONOUR: The plaintiff, an Owners Corporation, claims damages from the defendant, a builder, for breach of statutory warranties and common law duties in respect of the erection of a strata title development at Botany. 2The proceedings were commenced in the Consumer, Trader and Tenancy Tribunal (CTTT). The defendant filed, in the CTTT, that Tribunal's equivalent of a defence. When the proceedings were removed into this court, that was taken to be a defence in these proceedings. 3On 1 March 2013, the plaintiff filed its list statement in this court. On 15 March 2013, the Court ordered the defendant to file and serve its list response. The defendant did not do so, although it was notified of the making of that order. 4On 5 April 2013, the Court ordered that the deemed defence (the document filed in the CTTT being the equivalent of a defence in this court) be struck out and found a verdict for the plaintiff, for damages to be assessed. 5The matter comes before me today for assessment of damages. 6I am satisfied from the affidavit of Paul Berrill sworn today's date that the defendant has been given notice of the hearing today. I am satisfied, also, that the evidence on which the plaintiff relies, to which I will return in a moment, was served on the defendant. 7When the matter came on for hearing before me today, the defendant was called three times outside court. It did not appear. 8The evidence on which the plaintiff relies comprises: 1. A building defects report prepared by an engineer, Mr Greg Beard, of Core Project Consulting, dated 22 February 2013; and 2. A costing report prepared by Mr David Madden, a quantity surveyor, of MBM, dated 13 May 2013. 9In essence, Mr Beard identified the defects and provided a preliminary estimate of costs of rectification. Mr Madden assumed that the defects listed by Mr Beard were in fact defects, but prepared his own more detailed costing, which included appropriate allowances for preliminaries, contingency and risk and the like. 10I am satisfied from the evidence of Mr Beard that the building work carried out by the defendant was defective in the many respects identified by Mr Beard. 11I am satisfied from the report of Mr Madden that the cost of rectification, as at 13 May 2013, is properly quantified at a total of $855,479. That comprises an amount allowed for trade works and various amounts, identified by Mr Madden, for on-costs. It includes, as one would expect, an allowance for contingency and risk. In my view, each of the on-costs identified and costed by Mr Madden is proper to be allowed in, in the circumstances of this case. 12It follows, in my view, that the plaintiff is entitled to judgment in the amount sought. 13Mr Madden points out that his estimate does not include price escalation after the date of his report. To my mind, that is best covered by directing entry of judgment for the amount proved by his report, and directing that the judgment take effect from the date of his report. 14The plaintiff seeks its costs. Since costs ordinarily follow the event (see s 98 of the Civil Procedure Act 2005 (NSW) and rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW)), and since there is no reason whatsoever why the ordinary consequences of success should not be reflected in a costs order, it will have them. 15The plaintiff seeks also interest on its costs. Interest on costs may be ordered to ensure that a costs order more adequately compensates a plaintiff for what it has spent to vindicate its rights. In this case, bearing in mind that the plaintiff is an owners corporation and that all costs are funded by levies on owners, it does seem to me to be appropriate to ensure that, so far as possible, the orders that the Court makes in relation to costs provide as full compensation as can be done for the imposts on owners. 16In the circumstances, I direct entry of judgment for the plaintiff in accordance with paragraph 1 as amended of the minutes of order initialled by me and dated today's date. I direct that the judgment take effect on 13 May 2013. I make orders in accordance with paragraphs 2, 3 and 4 of that document. The exhibit is to be handed out.