Julie Aspinall v John Agius, JT Home Improvements Pty Ltd [2014] NSWCATCD 11

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Julie Aspinall v John Agius, JT Home Improvements Pty Ltd [2014] NSWCATCD 11 Hearing dates: 28 October 2013 Decision date: 16 January 2014 Jurisdiction: Consumer and Commercial Division Before: S Thode, Senior Member Decision: The application is dismissed. The respondent shall file and serve submissions as to costs within seven days of the making of the order. The applicant shall file and serve submissions as to costs within fourteen days of the making of the order. If either party wishes to be heard on the question of costs, application for a hearing must be made to the Registry immediately. Catchwords: Liability of contractor Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: Julie Aspinall (Applicant) John Agius, JT Home Improvements (Respondent) Representation: Ms McMahon (for the applicant) Mr Nematallah (for the respondent) File Number(s): HB 11/15133

reasons for decision

Application 1Ms Julie Aspinall is the registered proprietor (the applicant) of premises located at "...", Turramurra NSW 2024 (the premises). 2The applicant alleges the second respondent, or alternatively the first respondent in his personal capacity as a director of the second respondent, were the builders retained to undertake renovations on the premises (the respondents). It is further alleged that the residential building work was defective and the applicant seeks damages for breach of statutory warranties pursuant to section 18B of the Home Building Act 1989 (the Act). 3The applicant alleges that the parties entered into an oral do and charge contract for performance of residential home building work. 4It is not in dispute that there was no written contract between the parties and that the respondents did not provide a certificate of home owners warranty insurance. 5Section 3 of the Home Building Act (the Act) defines residential building works to include at least some of the work performed by the respondents. It was not in dispute that the defective work complained of is "residential building work" for the purpose of the Act and that the Tribunal has jurisdiction to hear and determine the issues between the parties. 6The parties tender and rely upon on the schedule of defects set out at pp 240 - 243 of the tender bundle. Where the parties have referred to "defects" they are the defects as per items 1 to 11 of the Scott Schedule (the defective work) and set out in the report of Doug Coombs dated 6 October 2012 filed and served by the applicant (the Coombs report). The stacked Stone Feature Chimney - finish not proper and workmanlike The front ground Floor Patio - failed to tile in a proper and workmanlike manner The rear ground Floor Patio - failed to construct steps in accordance with BCA The rear 1st floor balcony -failed to waterproof The north 1st floor balcony - ponding and fail to tile properly Stormwater drainage - failure to provide gutters and stormwater drainage Other external issues - corroding balcony handrails, cracked cement, damaged roof tiling Kitchen floor - not level and not within specified tolerances Lime stone tiling - permanent discoloration and cracking Ground floor ensuite - failed to prevent water from escaping and wrong gradient Main Bathroom - The contractor failed to prevent water from escaping to shower enclosure and water penetration