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Breach of contract in name, but not in limitation period
Two years is a short time in the life of a building and anecdotally, the sweet spot for the manifestation of defects is the two to three-year mark from completion. Two years from completion is, of course, the period within which a claim for a breach of statutory warranty may be brought under the Home Building Act 1989 (Act) and it would surprise few that many owners would struggle to meet this deadline, whether by virtue of their awareness of the defects, or their awareness of their rights.
If the defects can’t meet the criteria for a major defect, attracting a longer statutory warranty period of six years, this leaves owners searching for an alternative cause of action.
One has recently been presented by virtue of the statutory duty introduced by the Design and Building Practitioners Act 2020, but what about breach of contract? With many contracts expressly including the statutory warranties, why would it not be feasible to sue for breach of contractual warranty and obtain the benefit of the six-year limitation period under the Limitation Act 1969?
The Supreme Court has now answered that very question and has done so in the negative.
The owners entered into a residential building contract dated January 2016 with the builder. The builder left the property in April 2017, with the work incomplete.
In August 2019, the owners commenced proceedings in the NSW Civil and Administrative Tribunal against the builder. Those proceedings were transferred to the Local Court in July 2020.
In the Local Court, the owners claimed damages for breach of contract, claiming that the builder had breached express warranties in the contract. Those express warranties mirrored the statutory warranty found under section 18B of the Actand were required to be included in the contract in accordance with section 7(2)(f) of the Act.
The builder relied on a defence that the proceedings had been filed beyond the two-year statutory warranty period for defects other than major defects.
The owners argued that their claim was for a breach contract, where the relevant terms were worded similarly to the warranties in section 18B, rather than importing the statutory warranties and the other provisions in Part 2C of the Act. On the owners’ construction, their claim for breach of the contractual warranties had a limitation period of six years, as provided by section 14(1)(a) of the Limitation Act 1969 (Limitation Act).
The Local Court found in favour of the owners and the builder was ordered to pay damages and costs. The Court’s reasoning was as follows:
The builder appealed the decision to the Supreme Court of NSW.
The builder brought the appeal on several grounds, which relevantly included that the Court below erred in construing clause 39 of the contract, which incorporated the statutory warranties which applied pursuant to section 18B of the Act, by concluding that the statutory limitation period of two years to bring claims for defects other than major defects did not apply, but rather, the limitation under section 14(1)(a) of the Limitation Act 1969 (NSW) of six years from the date of breach of contract applied.
The Supreme Court considered that it was clear that the statutory warranties were not meant to be subject to any limitation period other than that which appears in section 18E of the Act. It emphasised that the warranties clause in the relevant contract contained the following qualifying statement: “To the extent required by the Home Building Act, the builder warrants that:”, which supported the submission that the limitation period of two years for defects other than major defects, as set out in the Act, would apply, and not the limitation for an action of breach of contract, being six years from the date of the breach.
The Supreme Court found that, if the Court below’s construction of the clause was preferred, it would mean that a builder who complied with the requirement of section 7(2)(f) of the Act by expressly including the warranties implied by section 18B into the contract, would be in a worse position than a builder who was party to a contract that did not contain warranties in its written form. Accordingly, a builder who had not expressly included the warranties would be entitled to rely on section 18E of the Act, but one who had would not be.
Ultimately, the contract should be read in light of the Act, whereby expressly including the warranties, as is required by the Act, should not be taken to lengthen their application from the baseline of the Act.
The Supreme Court also found that there was no sensible distinction, in these circumstances, between an action for “breach of statutory warranty” and an action for “breach of contract” to make the Court below’s construction compelling. Whilst it may be accurate to describe Part 2C of the Act as “consumer protection legislation”, ultimately the limitation periods exist to provide a level of certainty, not only to owners, but also to builders. This is reflected in section 18G of the Act, which seeks to protect the rights of a “person” under the Act, which reference was found not to be specific to the owner, but may also include the builder.
The way ahead
It is not yet known if the matter is to be subject of an appeal.
The Supreme Court has made it clear that the statutory warranties remain unmodified in their operation (or their limitation) by virtue of express inclusion in a contract. Put another way, a breach of a warranty which is included in a contract, that is required to be included in the contract and mirrors the warranties included in section 18B of the Act, must be read with the Act. A breach of those warranties will not give rise to a breach exclusively in the contract. That breach will be considered in light of the Act and the other applicable provisions in Part 2C of the Act.
The door may have been left open for owners to negotiate warranties which are separate, bespoke and distinct from the statutory warranties, which may attract the six-year limitation period for a breach of contract, regardless of the nature of the defect. Clear and unequivocal drafting would be required, to demonstrate that the parties intended for the additional warranties to apply in addition to and over and above those in the Act.
Authors: Christine Jones, Nicholas Achurch & Daniel Fane
In the media
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How sustainable building materials could help the construction sector overcome worker shortages
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Rocky outlook for home building sector
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In practice and courts
The NSW Government is working to increase confidence in the building and construction industry. They want to hear from builders, specialist tradespeople, building professionals, developers, building owners, certifiers, strata managers fire safety practitioners and members of the public. The consultations is open until 7 October 2022. Read more here.
Published – articles, papers, reports
Engineering Construction Activity, Australia
The Australian Bureau of Statistics estimates the value of engineering construction work done, commenced and yet to be done. Read more here.
Vujica v TNM Roofing Pty Ltd  NSWCATAP 305
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Enforceability of contract – requirement for writing – whether non-compliance with s 7 requirements renders contact unenforceable by contractor EVIDENCE – admissibility where rules of evidence do not apply – Procedural Direction 3 – Expert Evidence – failure to sign and date report – procedural fairness
Australian Consumer Law (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Evidence Act 2005 (NSW); Fair Trading Act 1987 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW); Statute Law (Miscellaneous Provision) Act (No 2) 2001 (NSW)
Green Power Planet Pty Ltd v Deschanel  NSWCATAP 314
APPEALS – refusal to allow fresh evidence as reasonably available before initial hearing – renewal of proceedings following non-compliance with work order – money order made – decision not to make further work order open to the Tribunal – leave to appeal refused.
Civil and Administrative Tribunal Act 2013; Home Building Act 1989
Onslow v Cullen  NSWSC 1257
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach — where contract extracted statutory warranties — where proceedings for minor defect brought after two years — where magistrate found limitation periods in s 18E did not apply — where prefatory words “to the extent required by the Home Building Act” used — held to incorporate limitation period APPEALS — Procedural fairness — where party made concession in case summary prepared in accordance with practice note — where magistrate disregarded concession — held to constitute a denial of procedural fairness APPEALS — Procedural fairness — Failure to give reasons — where preliminary ruling made subject to any authorities being brought to magistrate’s attention — unorthodox approach — failure to address principal submissions of one party in reasons APPEALS — from Local Court to Supreme Court — where grounds involved statutory interpretation and denial of procedural fairness — where held to involve questions of law — leave not required
Civil Procedure Act 2005 (NSW); Home Building Act 1989 (NSW); Limitation Act 1969 (NSW); Local Court Act 2007 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
Oslear v Commissioner of Fair Trading  NSWCATOD 110
ADMINISTRATIVE LAW – administrative review of decision to refuse an owner builder permit for the construction of a detached dual occupancy – whether special circumstances exist justifying the issue of a permit – meaning of special circumstances in s 32(1A) of the Home Building Act 1989 – no special circumstance found
Administrative Decisions Review Act 1989 (NSW); Home Building Act 1989 (NSW); Home Building Amendment Act 2014 (NSW); Interpretation Act 1987 (NSW)
Warburton v County Construction (NSW) Pty Ltd  NSWSC 1281
BUILDING AND CONSTRUCTION — Contract — Damages — Quantification — Quantification of damages for the rectification of defects — Where there is disagreement between expert witnesses as to quantification
Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd  NSWCA 186
CONTRACTS — Formation — Acceptance of offer — Acceptance by conduct — Where the parties each propounded draft documents — Where neither party expressly accepted the draft provided by the other party — Where respondent commenced works — Whether respondent by its conduct accepted the contract propounded by the appellant
CONTRACTS — Formation — Subsequent conduct — Where appellant sought variation of the works ostensibly in accordance with contract provisions — Extent to which subsequent conduct is relevant to questions of formation
Piety Constructions Pty Ltd v Hville FCP Pty Ltd  NSWSC 1318
BUILDING AND CONSTRUCTION – where payment schedule under Building and Construction Industry Security of Payment Act 1999 (NSW) served using Procore electronic information exchange system – whether provision in building contract concerning electronic service of documents engaged – whether payment schedule provided within 10 day limit in s 14 of the Act – whether electronic service deemed to occur at 9.30am on day following electronic receipt – where developer had actual notice of payment schedule on the evening of receipt – whether plaintiff builder entitled to recover claimed amount under s 15 of the Act
Building and Construction Industry Security of Payment Act 1999 (NSW); Corporations Act 2001 (Cth); Electronic Transactions Act 200 (NSW)
Rengasamy v Chief Commissioner of State Revenue  NSWCATAD 272
TAXES AND DUTIES — First Home Owner Grant (New Homes) — substantially renovated home
A New Tax System (Goods and Services Tax) Act 1999 (Cth); Administrative Decisions Review Act 1997 (NSW); Duties Act 1997 (NSW); First Home Owner Grant (New Homes) Act 2000 (NSW); Taxation Administration Act 1996 (NSW)
Regulations and other miscellaneous instruments Environment Planning and Assessment Amendment (Conflict of Interest) Regulation 2022 — published LW 30 September 2022
Strata Schemes Management Amendment (Miscellaneous) Regulation 2022— published LW 30 September 2022
Environmental Planning Instruments Goulburn Mulwaree Local Environmental Plan 2009 (Map Amendment No 8) — published LW 30 September 2022
Port Stephens Local Environmental Plan 2013 (Amendment No 40) — published LW 30 September 2022
State Environmental Planning Policy Amendment (Parramatta CBD) 2022 — published LW 30 September 2022
Sydney Local Environmental Plan 2012 (Amendment No 78) — published LW 30 September 2022
Warringah Local Environmental Plan 2011 (Map Amendment No 2) — published LW 30 September 2022
Waverley Local Environmental Plan 2012 (Amendment No 24) — published LW 30 September 2022
Coffs Harbour Local Environmental Plan 2013 (Amendment No 28) — published LW 23 September 2022
Fairfield Local Environmental Plan 2013 (Amendment No 43) — published LW 23 September 2022
Georges River Local Environmental Plan 2021 (Amendment No 3) — published LW 23 September 2022
State Environmental Planning Policy (Precincts—Western Parkland City) Amendment (Wilton Town Centre Precinct) (No 2) 2022— published LW 23 September 2022
State Environmental Planning Policy Amendment (Coastal Mapping and Native Vegetation) 2022— published LW 23 September 2022
Wingecarribee Local Environmental Plan 2010 (Amendment No 64) — published LW 23 September 2022
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