Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304

Supreme Court New South Wales

Medium Neutral Citation: Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304 Hearing dates: 30 April, 1, 2, 3, 7 May, 24, 25, 26, 30, 31 July, 6 August 2018 Decision date: 23 August 2018 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Proceedings dismissed Catchwords: BUILDING AND CONSTRUCTION – ss 18B, 18D of the Home Building Act 1989 (NSW) – statutory warranties as to quality of home building work – where plasterboarding, air conditioning and acoustic installation work in apartments is defective – whether the defendant builder did defective building work – the defendant suspended building work under the Building and Construction Industry (Security of Payment) Act 1999 (NSW) before being excluded from the site and not being allowed to complete the work – whether the defects are 'temporary disconformities' and therefore not in breach of the implied warranties contained in s 18B – loss or damage occasioned by defective building work is to be assessed by reference to established contractual principles of breach and causation – whether the plaintiffs' loss was caused by the defendant's building work – STATUTORY CONSTRUCTION – s 18D(1) – meaning of the phrase 'the same rights as the person's predecessor in title in respect of the statutory warranty' – whether s 18D gives a successor in title no rights where loss was not suffered by the predecessor in title caused by breaches of s 18B – DAMAGES – rule against double compensation – the plaintiffs entered into a Deed of Settlement with the developer's home building insurer and received payment in respect of defective work to the apartments – concurrent claim – claims made against the defendant were made in the same terms as those against the developer's insurer – whether plaintiffs have already been compensated for the loss which they allege was caused by the defendant; HELD plaintiffs failed to establish that defective work the subject of their claim was done by the defendant and the extent of the defects attributable to the defendant – defective work was not a temporary disconformity – the developer suffered no loss because it broke the chain of causation between any defective work done by the defendant and damage suffered by the developer, by taking the work out of the hands of the defendant – the right of the plaintiffs to sue the defendant for breach of the implied warranties is unaffected by the position between the developer and the defendant under their building contract Legislation Cited: Home Building Act 1989 (NSW) Building and Construction Industry (Security of Payment) Act 1999 (NSW) Cases Cited: P & M Kaye Ltd v Hosier & Dickinson Ltd [1972] 1 All ER Rep 121 (HL) Lintest Builders Ltd v Roberts [1980] 13 BLR 38 Allianz Australia Insurance Ltd v Waterbook at Yowie Bay Pty Ltd [2009] NSWCA 224 Boncristiano v Lohmann [1998] 4 VR 82 Category: Principal judgment Parties: Owners of Strata Plan 80458 - Plaintiff TQM Design & Construct Pty Ltd (ACN) 091 508 422 - Second Defendant Representation: Counsel: G.A. Sirtes SC and P. Barham F.C. Corsaro SC and A.R. Vincent