Benjamin John Davies and Prue Davies (the applicants) signed an ACT Home Building Contract on 2 March 2014 with Capital Homes Pty Ltd (the respondent) to build a home at Coombs, ACT. On 7 March 2015, the applicants notified the respondent of defects in an area described in the floor plan as the \u201calfresco\u201d area. While the respondent later attempted to fix the problem, this was not successful. The applicants filed an application with the ACAT on 30 March 2017, seeking $9,964 to rectify works to the \u201calfresco\u201d area. The respondent filed a response seeking that the application be dismissed.<\/p>\n
The Tribunal accepted the respondent\u2019s contention that it did not have any contractual obligation to fix the problem. The \u2018Maintenance Liability Period\u2019 under the contact is 90 days from the practical completion date (11 November 2014, as stated in the \u2018Notice of Practical Completion\u2019), by which the applicant must notify the respondent of any defects in the \u201calfresco\u201d area. Since the respondent was first notified of the defects on 7 March 2015 (beyond the 90 days period), no contractual obligation could be imposed on the respondent.<\/p>\n
However, the Tribunal held that the respondent was subject to statutory warranties under the Building Act 2004 (the Act), specifically that the work \u201cwill be carried out in a proper and skillful way and in accordance with the approved plans\u201d (section 88(2)(b) of the Act). The statutory warranties expire at the end of the warranty period, that is, two years from completion for non-structural defects and six years for structural defects (regulation 38, Building (General) Regulation 2008). The Tribunal found that the defects raised by the applicants were structural, in that they concern a \u201ccomponent (including weatherproofing) forming part of the external walls or roof of the building\u201d (section 38(2)(b) and section 84 the Act). The alfresco area is part of the \u2018building\u2019 for the purposes of this warranty. As the \u2018Certificate of Occupancy and Use\u2019 was issued on 3 December 2014 and the applicants filed their application with the Tribunal on 30 March 2017, the applicants filed their application well within the six year statutory warranty period.<\/p>\n
After considering evidence from both sides, the Tribunal was satisfied that the defect in the \u201calfresco\u201d area was caused by the respondent\u2019s poor workmanship rather than improper use of the applicants. Therefore, the respondent has not carried out the works in a proper and skillful way and in accordance with the approved plans, and has therefore breached the statutory warranty. In the circumstances of this case, the Tribunal accepted the applicants\u2019 claim for damages.<\/p>\n","protected":false},"excerpt":{"rendered":"
Benjamin John Davies and Prue Davies (the applicants) signed an ACT Home Building Contract on 2 March 2014 with Capital Homes Pty Ltd (the respondent) to build a home at Coombs, ACT. On 7 March 2015, the applicants notified the respondent of defects in an area described in the floor plan as the \u201calfresco\u201d area. […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[53,60,61,33,54,64,67,69,70,1,32],"tags":[799,23,800,801,95,103],"class_list":["post-3246","post","type-post","status-publish","format-standard","hentry","category-act","category-bca-compliance-nsw","category-bca-compliance-act","category-building-defects-nsw","category-building-defects-act","category-case-review","category-news-and-publications","category-strata-disputes-nsw","category-strata-disputes-act","category-uncategorised","category-uncategorized-zh","tag-building-act-2004","tag-building-defects","tag-maintenance-liability-period","tag-proper-and-skillful-work","tag-rectification","tag-statutory-warranties"],"_links":{"self":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/3246","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/comments?post=3246"}],"version-history":[{"count":1,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/3246\/revisions"}],"predecessor-version":[{"id":3247,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/3246\/revisions\/3247"}],"wp:attachment":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/media?parent=3246"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/categories?post=3246"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/tags?post=3246"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}