Combustible Cladding Claims Clarified

The Owners – Strata Plan No 92450 v JKN Para 1 Pty Limited & Anor [2023] NSWCA 114

GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.

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Quick Read

This NSW Court of Appeal decision about combustible cladding on a Parramatta strata building that was developed, designed and built by Toplace clarifies construction compliance obligations under the Home Building Act 1989. The primary issue was whether the aluminium cladding had to meet the prescribed standards in the Building Code of Australia or whether it was enough that they met lower ‘deemed to satisfy’ requirements via an alternative approach. A secondary issue concerned the appropriate way to assess loss and damage.  After considering construction laws and the circumstances, the NSW Court of Appeal decided that where no detailed alternate cladding solution was prepared or submitted that met fire safety standards, strict compliance with the Building Code of Australia was necessary. It also decided the standard way to assess loss was the cost of replacing the cladding.

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Implications

The key implications of this strata case are as follows.

• Where cladding doesn’t meet the Building Code of Australia ‘deemed to satisfy’ there is a presumed breach of the Home Building Act 1989 statutory warranties.

• Where no alternative solution for cladding is prepared, assessed and certified before the construction certificate, the presumed breach of the Home Building Act statutory warranties continues.