Builders prefer being on the tools; court proceedings are generally of no interest to them.
However, the Supreme Court decision in The Owners – Strata Plan No 94624 v G & T Younan Constructions Pty Ltd provides a reminder for builders: failing to comply with court processes can be as damaging as the defects themselves.
The Owners Corporation of a Dee Why residential building sued the builder, G & T Younan Constructions, and developer, Gold Star Holding. The action included a claim for defective works and loss occasioned by the defects under both the Home Building Act 1989 (NSW) and the Design and Building Practitioners Act 2020 (NSW).
Of interest in this matter is the consequences of the defendant builder and developer’s lack of attention to the proceedings, the result which followed.
The Court found that the defendants’ works were defective and so awarded the Owners:
Total exposure exceeded $2.6 million, before legal costs.
The builder and the developer did not appear at trial.
The defendants:
Relying on case authority, the Court confirmed it may proceed in a party’s absence where notice has been given.
The plaintiff still had to prove its case — but did so through structured, uncontested expert evidence.
As the defence did not engage or appear at the final hearing, their evidence was not read into Court and not considered by the judge, resulting in the plaintiff’s technical narrative going unchallenged.
Non-Appearance Does Not Stop a Trial
The Court can (and will) proceed under r 29.7 UCPR, which provides that the Court may either proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or adjourn the trial where a party does not appear.
In this case, the Court was satisfied that the builder had plenty of notice of the hearing and so chose to proceed.
Practice Note Breaches Have Consequences
Failure to file evidence, attend conclaves or comply with timetable orders strips you of the opportunity to challenge expert material.
In this case, the experts were ordered to conclave on 3 separate dates, however the conclave failed to proceed.
Expert Evidence Wins Undefended Cases
If you do not serve competing expert reports, the Court may accept the plaintiff’s evidence in full.Further, if no one appears to read your evidence into Court, the Court is not obliged to consider it when making a decision.
In this case, the evidence was not read into Court so the Court relied wholly on the evidence of the plaintiff.
The plaintiff’s evidence was also found to have been prepared by experts in the field who had considered and complied with the expert code of conduct.
Interest Accumulates While You Delay
Almost $1 million in interest was awarded because the matter remained unresolved for years.
In this case, interest was calculated from 2016.
Court compliance is not administrative formality; it is risk management.
Ignoring directions, missing deadlines, or assuming proceedings will “go away” can convert a defendable defect claim into a multi-million-dollar judgment.
For builders, the lesson is simple:
(or just build a defect-free building)
Failure to do so is financially unforgiving; and may cost more than the cost of rectification.
This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.
gretel.wathen@kreisson.com.au
Associate | Project Coordinator | 02 8239 6509
