Rectification orders are a preference, not a right

In the case of Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23, NCAT highlighted that monetary orders may be made in place of work orders even where a work order is preferred by the offending party. In this case, KH was appealing an order to pay $231,770 for defects in a home they built for Marsden. They argued that a work order to rectify the defects could have easily been made instead of damages, and that the Tribunal should not have considered any of their misconduct in previous building projects that were unconnected to this matter. KH also argued that under s48MA of the Home Building Act 1989 rectification of the defects by the responsible party is preferred.

Ultimately the Tribunal dismissed the appeal, stating that they were within their power to consider the previous misconduct of KH, as s79U(2)(g) Fair Trading Act 1987 states that the conduct of the parties to the claim in relation to similar transactions is to be taken into account when making orders. They also held that the preference for rectification in s48MA does not lead to an absolute right, and monetary orders can be made.

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