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Doonan v Ultra Modern Developments Pty Ltd trading as Eagle Homes

By November 13, 2017 No Comments
Work Orders & Rectification

The homeowner applicants sought an order that the builder respondent “do work or services as stated below to the approximate value of $50,000.00 to repair outstanding warranty repairs that Eagle Homes won’t do”.

In 2011, the homeowners entered into a contract with the builder to build a home at a contract price of $235,495.00. In 2012, the builder issued a final occupation certificate, but the homeowners were not satisfied with the work.

In 2012, the homeowners submitted a complaint to NSW Fair Trading who in 2013 issued rectification orders to the builder. In its report following the purported completion of the orders, Fair Trading identified that several items remained defective or not completed in a good and workmanlike manner.

The homeowners, unsatisfied with the builder’s non-compliance with the rectification orders, commenced NCAT proceedings.

In the Home Building Application, the homeowners asserted that, “The fact that Eagle Homes has had over 12 mths to have repairs done. They won’t comply with Fair Trading Rectification Order. I have lost a lot of time because don’t turn up when they say they are lost wages and what they have tried to repair they make worse”. The relief sought by the homeowners was a money order.

In its defence, the respondent sought a work order in accordance with s 48MA of the Home Building Act.

Although preferring the respondent’s quantum evidence, the Tribunal found at [42] that:
“The Tribunal is not satisfied that a rectification order is the appropriate order in the claim. The applicants have lost faith in the ability of the respondent to carry out the work. The applicants have been put to the trouble of commencing these proceedings after firstly attempting to have defects remedied through the intervention of NSW Fair Trading. Although the respondent did respond to that process and carry out some remedial work, there remained other patent and latent issues. The Tribunal is satisfied that the appropriate order is an order that the applicants be compensated for the loss they have suffered through the respondents (sic) breach of the statutory warranties.”

The Tribunal ordered that the builder pay the homeowners $27,727.02 plus GST which amounted to 47% of the quantum of the homeowners’ claim.