Barber v Wilson

By January 24, 2018No Comments
Experience Counts

In 2013, the applicant homeowner purchased a townhouse from the respondent developer.

It was common ground that the respondent engaged a builder, Eye Constructions Pty Limited, to build the townhouses for her. The Senior Member had no doubt that the respondent sold the townhouse to the applicant intending that the builder would carry out the works properly so that the applicant would acquire it in good order and free from defects.

The applicant originally claimed compensation from both the builder and the respondent developer. However, prior to the final hearing the applicant settled the proceedings against the builder and withdrew the application against the builder. The claims for compensation against the respondent developer were reduced to:

• the cost of repairing leaks in the townhouse roof – $1,375;
• the cost of repairing a leaking and faulty tap – $200;
• the cost of repairing a colour bond fence – $550;
• the cost of grouting and repairing stained tiles – $4,652.40; and
• the cost of installing the exhaust fan in the townhouse ensuite – $200

The defects and quantum of the defects were supported by expert evidence. The applicant’s expert evidence was not traversed by the respondent.

The Tribunal found that whilst the respondent demonstrated that she did all that she reasonably could to ensure the builder did the work properly, the effect of section 18C of the Home Building Act 1989 (NSW) (Act) is to make a developer liable for any breaches by the builder of the warranties implied by section 18B of the Act, irrespective of the developer’s efforts in forcing compliance from the builder.

The Tribunal went on to find the respondent liable for compensation towards repairing of leaks in roof, grouting and repairing stained tiles and installing exhaust fan in townhouse ensuite. Whereas due to lack of evidence defects in tap and fence were considered not to be covered under statutory warranties under Part 2C of the Act. All in all, the applicant was awarded compensation of $6,227.40.