The recent decision in Howell v Talevski clarified that the issue of whether proceedings for breach of the warranties in section 18B of the Home Building Act 1989 (NSW) (HBA) have been commenced within time is ultimately a matter of contractual construction, and that termination of a contract does not render the works complete by relieving the builder of any further obligation to perform the works.
This case involves a claim by the plaintiff owner (Owner) against the defendant builder and structural engineer (Builder) regarding defective and incomplete work.
In 2007, the parties entered into two contracts. The first, in April 2007, was for the construction of foundations. The second, in May 2007, was for construction of a duplex on those foundations (Contract).
The Builder commenced work under the Contract in August 2007. The date for completion of the work was extended a number of times to a date after 17 July 2011. By August 2012, the works remained incomplete. The Contract was terminated in November 2012.
The Owner commenced proceedings on 17 July 2018 in NCAT alleging breach of the warranties in section 18B (Warranties) of the Home Building Act 1989 (NSW)(HBA). Those proceedings were subsequently transferred to the Supreme Court of NSW.
The Builder argued that the proceedings were commenced after the relevant limitation period had expired on the basis that on termination of the Contract, the works were ‘complete’, and so the limitation period commenced on the date of termination.
The preliminary issues for the Court to determine included:
Stevenson J concluded the plaintiff had commenced proceedings within time on the following basis.
The limitation period for breach of the Warranties is seven years for all defects where the relevant contract was entered into before 1 February 2012. The subsequent amendments to the limitation period (reducing this to six years for structural defects and two years for non-structural defects) were not retroactive.
According to section 18E(1) of the HBA (in force in 2007), the limitation period for filing proceedings runs from:
In determining whether the provisions of section 18E(1)(a) or (b) applied, His Honour stated that “completion of residential building work” occurred on the date that the work was complete “within the meaning of the contract under which the work was done”, and not any definition within the HBA.
His Honour then concluded that the work under the Contract was not complete immediately prior to its termination, based on the definition of completion in the Contract. His Honour also concluded that the termination and discharge of the Builder’s contractual obligations did not render the works complete.
Accordingly, His Honour concluded that the limitation provisions in section 18E(1)(b) applied to the claim, with the limitation period running from the date for completion of the work “specified or determined” under the Contract.
The Court noted that the parties had agreed to extend the date for completion of the work to after 17 July 2011.
Accordingly, His Honour concluded that the proceedings were commenced within time as they were commenced within seven years of the date for completion.
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Tanios v Baserite Constructions Pty Ltd  NSWCATCD 85
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – whether a building works agreement arose out of a compromise of prior proceedings – whether a consent work order in the prior proceedings was beyond the tribunal’s jurisdiction – renewal application by home owner on remitter from appeal panel – oral variation of building works agreement alleged by builder – whether oral variation is enforceable – cross application by builder for quantum meruit sum in respect of some building works performed following compromise of prior proceedings.
Jayasooriah v Wisdom Properties Group Pty Ltd  NSWCATCD 84
BUILDING AND CONSTRUCTION – renewal of proceedings after work order – whether applicant can raise a fresh claim not the subject of the previous orders.
Addbuild Master Builders Pty Ltd v Stern  NSWCATCD 83
BUILDING AND CONSTRUCTION – proper construction of payment provisions in clauses 12 and 14 of New South Wales Fair Trading residential building contract – damages – mitigation – work order – section 48MA of the Home Building Act 1989 (NSW).
Dodd v Balmain Projects Group Pty Ltd  NSWCATCD 82
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – major defect – whether any defects are a major defect – whether a work or a money order should be made in respect of major defects as agreed or found.
Bourke v Wincrest Group Pty Ltd  NSWCATCD 81
COSTS – no issue of principle.
Betts v Harman  VCC 1349
SALE OF LAND – sale by owner builder – failure to annex required insurance as provided by section 137B of the Building Act 1993 – whether parties contracted out of the purchaser’s entitlement to rescind – whether purchaser elected to affirm contract – whether precluded from rescission by waiver estoppel – whether time for provision of insurance material extended by terms of contract – whether purchaser’s failure to settle on time precludes purchaser from rescinding.
Bajimaya v Reward Homes Pty Ltd  NSWCATAP 297
HOME BUILDING – jurisdiction – agreement to enter into a building contract.
Civil and Administrative Tribunal Act 2013 (NSW), sections 60, 80, 81, Scheme 4 clause 12; Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A.
Day v Quince’s Quality Building Services Pty Ltd  NSWCATAP 296
BUILDING AND CONSTRUCTION – construction and interpretation of home building contract – clause 14 of the BC4 residential building contract – whether tribunal erred in interpretation and application of the clause.
Hume Plasterboard Pty Ltd v Best Interiors Aust Pty Ltd & Ors (No.2)  NSWDC 514
COSTS – whether part of successful defendant’s costs should not be paid because of non-compliance with procedural directions – whether costs payable by unsuccessful defendant should be paid on indemnity basis – whether Bullock order should be made.
De Marco v Macey  NSWCATAP 291
HOME BUILDING – alleged procedural unfairness – alleged inadequate consideration of evidence – no issue of principle.
Mick Fabar Constructions Pty Ltd v Nicholls; Nicholls v Mick Fabar Constructions Pty Ltd  NSWCATAP 290
HOME BUILDING – jurisdiction of Tribunal – appeal on a question of law – breach of contract – breach of statutory warranty – method of rectification – assessment of cost of rectification – indemnity costs.
Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd  NSWDC 507
BUILDING AND CONSTRUCTION – Australian consumer law.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – false or misleading applications.
Nova Home Developments Pty Ltd v Manzala  NSWCATAP 287
PROCEDURAL FAIRNESS – failure to allow cross-examination.
APPEALS – leave to appeal – whether decision against the weight of evidence.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).
Leahy v Watermin Drillers Pty Ltd  NSWCATAP 281
APPEAL – written contract for water drilling – oral variation – whether tribunal erred in preferring oral evidence of contractor – appellant claiming denial of natural justice due to lack of waterflow evidence – no expert evidence provided before tribunal of waterflow to support appellant’s claims – appeal dismissed.
Allianz Australia Insurance Limited v Rawson Homes Pty Ltd  NSWCA 224
CONTRACTS – construction – construction of insurance contract – where policy insured against damage to construction projects – where houses under construction damaged in hailstorm – where policy provided for application of “deductible” – whether “deductible” to be applied in respect of each house under construction, or whether to be applied only once to the total sum to be paid for damage caused by the hailstorm.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.