Written by In The Owners Strata Plan 64757 v Sydney Remedial Builders Pty Ltd [2023] NSWSC 1127, the NSW Supreme Court was asked to consider the meaning of “completion” under the Home Building Act 1989 (NSW) (‘the Act’).
On 15 March 2019, the plaintiff (The Owners Strata Plan 74757) commenced proceedings in respect of defective building works under Section 48MA of the Act. The defendant (Sydney Remedial Builders) was retained to remedy the building defects caused by the original builder. The issue was whether proceedings commenced within the statutory warranty period under Section 18E of the Act, which was 7 years after completion. That question was referred to architect, Dr Phillip Briggs. Dr Briggs concluded that the date of practical completion of the works was 16 March 2012, and thus commenced in time. The plaintiff urged for the adoption of Dr Brigg’s report, however the builder claimed Dr Briggs misconstrued the definitions of “completion” and “practical completion”.
In considering this issue, the Court considered Section 3B of the Act, which provides:
(1) The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.
(2) If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.
The Court noted that completion is further down the construction pathway than practical completion but does not necessarily mean final completion. The Court found that Dr Briggs had conflated the meanings of “completion” and “practical completion”, and thereby applied the wrong test. The Court found that practical completion had occurred a week earlier than the date concluded by Dr Briggs, indicating that proceedings were commenced out of time.
This case highlights that the date of “completion” under Section 3B is pivotal in determining the statutory warranty period under the Act.