Australia, Sept. 9 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

1. These proceedings concern a dispute arising out of a home building contract. The subject of the contract was a two-storey home at Schofields (the 'Contract').

2. The Contract was in a standard form NSW Residential Building Contract for New Dwellings as published by the Housing Industry Association ('HIA'). It contained no special conditions, and as such it prescribed a 26-week period for completion (subject to valid extensions of time).

3. The parties to the Contract were the plaintiffs, who are husband and wife, and the first defendant ('IB'). Also joined in the proceedings were the second, third and fourth defendants. The third defendant ('JH') is an experienced engineer who, on any view of it, was supervising the construction work undertaken pursuant to the Contract by IB. The fourth defendant ('ES') is the wife of JH and is the sole director of IB. She played no part in the actual construction work, including any supervision thereof. The second defendant ('AH') is the son of JH and ES. He was a 20% shareholder in IB but held no executive or other position of any nature in IB. Indeed, he was in full-time employment with a third party. His only involvement in the Contract came as a result of agreeing to help his father with a progress claim.

4. The plaintiffs allege that the second to fourth defendants are liable pursuant to the provisions of s 37 of the Design and Building Practitioners Act 2020 (NSW) ('DBP Act'). JH accepts that he is so liable. There is a contest as to whether, in the circumstances, ES and AH can be held to be liable under the Act.

5. The defendants were originally legally represented. Unfortunately, they saw fit to terminate the retainer of their solicitors, and at the hearing each natural person defendant appeared in person and, in reality, IB was represented by JH. Given the legal and factual issues which arose in the proceedings, the decision of the defendants to do so has made the determination of the proceedings a much more difficult exercise than it should have been. Significantly, in my view, legal propositions put forward by the plaintiffs were not adequately addressed by the defendants and, similarly, certain factual matters were not properly addressed by either the adducing of evidence or appropriate cross-examination.

6. I have attempted to determine the proceedings while ensuring that the Court is not led to misapply legal principles but, beyond that, I was constantly conscious of the inability of a trial judge to be seen to assist the defendants beyond that which is basal and appropriate.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198844ec604894d5b1dd0c0c)

Disclaimer: Curated by HT Syndication.