The Owners – Strata Plan 83572 v Jackson Teece Chesterman Willis Pty Ltd [2019] NSWSC 942

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 83572 v Jackson Teece Chesterman Willis Pty Ltd [2019] NSWSC 942 Hearing dates: 15 – 17 July 2019 Decision date: 25 July 2019 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Proceedings dismissed with costs Catchwords: BUILDING AND CONSTRUCTION – residential building work – statutory warranties – remedial work to leaking façade – scope of work to be undertaken by the remedial builder – whether work done without due care and skill – whether any loss shown to have resulted from builder's work Legislation Cited: Home Building Act 1989 (NSW) Category: Principal judgment Parties: The Owners – Strata Plan 83572 (Plaintiff) Jackson Teece Chesterman Willis Pty Ltd (First Defendant) Michael Fitzgerald Consulting Engineers Pty Ltd (Second Defendant) Momentum Mortgages Limited (Receivers and Managers appointed) (Third Defendant) Mark Paul Neumann (Fourth Defendant) Naomi Ann Neumann (Fifth Defendant) Representation: Counsel: T Bland (Plaintiff) G Carolan (Fourth and Fifth Defendants)

Solicitors: Everingham Solomons Solicitors (Plaintiff) Nexus Lawyers Pty Ltd (Fourth and Fifth Defendants) File Number(s): SC 2016/299125

Judgment 1. The plaintiff is the Owners Corporation in respect of a development in Hunter Street, Newcastle known as "Bellevue on Bellevue". 2. The development comprises a commercial suite and three two-bedroom residential units in the former Bellevue Hotel and an adjacent seven storey residential apartment building containing 28 two-bedroom residential units. 3. The development site is located immediately adjacent to the Hunter River, within 1km of the Newcastle oceanfront. 4. Construction of the development commenced in June 2007. The builders were Bay Building Investments Pty Ltd and, later, Merewether Technologies Pty Ltd. Neither is involved in these proceedings. 5. By October 2008, the façade to the seven storey building had been constructed using a James Hardie product comprised of compressed fibre cement sheeting known as "ExoTec" façade panels. 6. The Owners Corporation was created on registration of the strata plan on 19 April 2010. 7. By the time the strata plan was registered, construction was almost complete but leaking was occurring through the façade of the building on all levels. 8. A final occupation certificate was issued on 19 October 2010. 9. The only remaining defendants are Mr Mark and Mrs Naomi Neumann; the fourth and fifth defendants. 10. The Owners Corporation has settled with the first and second defendants, Jackson Teece Chesterman Willis Pty Ltd and Michael Fitzgerald Consulting Engineers Pty Ltd. The third defendant, Momentum Mortgages Limited (Receivers and Managers appointed), has been deregistered. 11. In August 2010, Mr and Mrs Neumann operated a partnership trading as "Mark Neumann Building" and were engaged by the then project manager of the development, Cyre Group Ltd, to carry out remedial works in respect of the façade. 12. As only Mr Neumann was involved in the day to day work on the site, I shall, without any intending any disrespect to Mrs Neumann, refer simply to him. 13. Mr Neumann performed the rectification work in January and February 2011. That work was residential building work for the purposes of the Home Building Act 1989 (NSW). 14. Although the Owners Corporation's claim against Mr Neumann once ranged much wider, the question now is whether the Owners Corporation has established that the remedial work done by Mr Neumann in relation to the façade was in breach of the warranty implied by s 18B of the Home Building Act that the work would be done with due care and skill.