Metricon Homes Pty Ltd (atf Metricon Homes Unit Trust) v Lipari

COURT OR TRIBUNAL

Supreme Court of New South Wales

DATE FILED (OR FIRST HEARING DATE)

2021

LITIGATION TYPE

Corporate Accountability

SUBJECT MATTER

Other

REVIEW TYPE

Judicial review

SUMMARY

BUILDING & CONSTRUCTION – plaintiff constructed house for defendant – plaintiff sued defendant for unpaid balance of contract price – defendant claimed entitlement to set-off for defects and brought cross-claim against plaintiff and against structural engineer – whether defects established – extent of defects – consequences of defects – proper measure of damages

“In his report of July 2023, Mr Camenzuli had stated that “it is accurate to conclude that we have undergone a number of shrink and swell cycles over the last 5 years”. In their joint report, Mr Hartcher and Mr Keighran also referred to the “seasonal weather patterns and ground moisture fluctuations and cycles” which would have been completed in the six years since practical completion, and set out data from the Bureau of Meteorology (BOM) detailing the extreme weather that had been experienced in this period, concluding: “The periods of dry weather along with the periods of extremely wet weather experienced over the last 6 years as verified by the Bureau of Meteorology data, means that all expected soil swelling and shrinkage extremes that can be allowed for and are to be considered under AS 2870-2011 have already occurred”. On being taken to this evidence, Mr Camenzuli expressed the view, contrary to the opinion stated in his report, that there had in fact not been a single shrink and swell cycle in the past six years: “I don’t see how anyone can say ‘The cycles that we have experienced’ because we haven’t received one cycle of wetting and drying and wetting again”….Mr Camenzuli did not provide any explain as to how, for example, a path through nearby parklands or a granny flat on a property somewhere in the vicinity might impact ground moisture conditions in a manner more significant that any impact from the extreme weather conditions over the past six years as disclosed by the BOM data. Further, the statement that it was “very, very possible” that such matters might occur “within the 95% of expectations” did not appear to be an opinion based on any specialised knowledge".

CASE DOCUMENTS

Metricon Homes Pty Ltd (atf Metricon Homes Unit Trust) v Lipari [2024] NSWSC 566