Written by A builder was recently found liable for property damage caused by defective building works. The NSW Civil and Administrative Tribunal (NCAT) considered appropriate remedies for building work where a certain rectification method is not a reasonable course to adopt.
In this case, a property owner engaged a builder to design and construct a house across the road from a lagoon. The contract required the builder to provide hydraulic stormwater details from an engineering firm and to construct a hydraulic stormwater drainage system in accordance with those details. The builder obtained conceptual plans for the stormwater system from an engineering firm, that were subsequently approved by the local council in granting the construction certificate for the property.
Unfortunately, the house was damaged in a flooding event in 2020, so the owner commenced proceedings in NCAT for breach of the statutory warranty implied by section 18B(1)(a) of the Home Building Act 1989 (NSW). The builder sought to avoid liability on the ground that the council was the one responsible because they had approved the stormwater management plan.
Expert evidence showed that the property was at risk of flooding due to the fundamental design and construction flaws in the stormwater systems of the house, so the builder had breached the implied warranty to carry out work with due care and skill.
The appropriate remedy was to place the owner in the position he would have been in had the builder fulfilled its contractual obligations, and to undertake mitigating solutions proposed by an expert, rather than to require the builder to raise the floor level to ensure that the building was not subject to stormwater penetration (as the building was already built).