Strike While the Iron is Hot; How Delay Erodes Your Rights

FACTS

The recent case of The Owners Strata Plan No 64757 v Sydney Remedial Builders Pty Ltd [2024]
NSWCA 85 involved a dispute, where the homeowners sued the builder for damages for defective
works performed in 2012. The matter was finally brought to court in 2019, and the builder argued that
the claims were barred by delay as 7 years had passed since completion.

The contract defined ‘Practical Completion’, and whether or not the date of practical completion was
different to the date of completion was called into question.

Section 3B of the Home Building Act 1989 (NSW) relevantly allows completion to be defined by the
parties:
“(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.”

ISSUE

Whether the contractual terms regarding “Practical Completion” affected the date of completion under
section 3B of the Home Building Act 1989 (NSW)?

FINDING