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Posted 08 September 2020
Category: Building Defects
In a recent case, Ippolito v Cesco [2020] NSWSC 561 (“Cesco”), the Supreme Court shed further light on this question.
Essentially, it confirms previous Supreme Court decisions, especially The Owners – Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 (“Di Blasio”) and The Owners Strata Plan 73162 -v-Dyldam Developments Pty Limited [2014] NSWSC 1789 (“Dyldam”).
These cases suggest that:
The cases also give examples of the circumstances in which an owner may be acting reasonably in declining or imposing conditions on consent to the builder rectifying its defective work. For example:
Cesco also considers Section 48MA of the Home Building Act 1989 (“HBA”) which came into force after Di Blasio and Dyldam were decided. The Court found that:
There is another relevant provision of the HBA which came into force after Di Blasio and Dyldam were decided, Section 18BA, which was not considered by the court in Cesco, as the contract in that case had been signed before the provision came into force. Key points:
What the decisions mean in practice for owners corporations and builders is that:
Bannermans can help in providing advice on:
These are important questions which may have significant adverse consequences on the assessment of damages and costs, Bannermans can therefore provide advice and draft agreements to assist in such matters.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.