Owners Strata Plan 78465 -v- M D Constructions Pty Ltd [2016] NSWSC 162

Supreme Court New South Wales

Medium Neutral Citation: Owners Strata Plan 78465 -v- M D Constructions Pty Ltd [2016] NSWSC 162 Hearing dates: 16, 17, & 18 February 2016 Decision date: 19 February 2016 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Judgment for the plaintiff against the defendant in the amount of $577,490.66. Defendant to pay plaintiff's costs of the proceedings to be assessed on the footing that they have continued in the District Court and the plaintiff will not be entitled to recover any costs from the defendant in connection with the application for the transfer to this Court of these proceedings Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 18B, 18E(1)(a) – claim for damages for breach of statutory warranty by builder in respect of work not performed in a proper and workmanlike manner – where particulars of defective work were pleaded by reference to an expert report and then amended to refer to another report whether the change constitutes commencing proceedings for the purpose of s 18E(1)(a) – mitigation of damages – whether plaintiff failed to mitigate damages by not giving the defendant builder an opportunity to rectify defective work – HELD – change in particulars was not the commencement of new proceedings – no failure to mitigate because the plaintiff did not act unreasonably in not giving the defendant the opportunity to remedy the defective work Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Owners Strata Plan 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Shepherd v Felt and Textiles of Australia (1931) 45 CLR 359 Category: Principal judgment Parties: Owners Strata Plan 78465 - Plaintiff M D Constructions Pty Ltd - Defendant Representation: Counsel: D. Hand - Plaintiff J.R. Young - Defendant