New South Wales Consolidated Acts

HOME BUILDING ACT 1989 - SECT 18BA

18BA Duties of person having benefit of statutory warranty

(1) Breach of a statutory warranty implied in a contract constitutes a breach of the contract and accordingly--

(a) a party to the contract who suffers loss arising from the breach has a duty to mitigate their loss, and

(b) the onus of establishing a failure to mitigate loss is on the party alleging the failure.

(2) The duty of a party to a contract to mitigate loss in respect of a breach of a statutory warranty extends to a person who has the benefit of the statutory warranty or who is entitled to the same rights as those that a party to the contract has in respect of the statutory warranty.

(3) The following duties apply to a person who has the benefit of a statutory warranty but do not limit any duty the person has to mitigate loss arising from breach of a statutory warranty--

(a) when a breach of the statutory warranty becomes apparent, the person must make reasonable efforts to ensure that a person against whom the warranty can be enforced is given notice in writing of the breach within 6 months after the breach becomes apparent,

(b) the person must not unreasonably refuse a person who is in breach of the statutory warranty such access to the residential building work concerned as that person may reasonably require for the purpose of or in connection with rectifying the breach (the
"duty to allow reasonable access" ).

(4) A breach of warranty
"becomes apparent" for the purposes of this section when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach.

(5) If a failure to comply with a duty under this section is established in proceedings before a court or tribunal concerning a breach of a statutory warranty, the failure is a matter that the court or tribunal may take into account. If the failure is a failure to comply with the duty to allow reasonable access, the court or tribunal must take the failure into account.