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Application to Dismiss Home Defect Case Against Builder is Rejected

The High Court has rejected a builder’s application to dismiss a home defect case filed against him by a family who had to move out of their home due to health concerns.

Mr Justice Eagar stated that the builder had contributed to a delay in the proceedings, and the financial toll of their consequent move from the home had made it difficult for the family to attend the proceedings.

Mr and Mrs Joseph Arthur issued a summons against Mr Joseph Gorman in January 2012, demanding compensation for damages, loss, and expenses caused by negligence, breach of duty and / or breach of contract.

The action was triggered by alleged defects in home that Mr Gorman had designed for them. Although Mr Gorman filed an appearance the following March, he did not immediately deliver a defence.

The Arthurs claimed that they had hired Mr Gorman in early 1999 to direct the building of their home. Construction was completed in December of that year, but after moving in, they noticed a dampness that eventually became a health issue and forced them to move out in September 2009. They commissioned reports that revealed a problem with the property’s foundations.

In the High Court, Mr Gorman applied for an order dismissing the claim for want of prosecution and inordinate and inexcusable delay on behalf of the Arthurs. The original statement of claim was delivered in July 2012 but the family took no further action, and two years later Mr Gorman tried to have the home defect case dismissed due to lack of reasonable cause of action and its basically frivolous nature.

Specialists in Construction Insurance

The Arthurs said that they had to deal with large problems associated with the home as well as rehouse themselves and their children. They also struggled with the financial situation their home put them in, particularly within the context of the economic downturn, and were therefore unable to obtain legal support for the prosecution of their home defect case.

In such cases, the court is required to balance the interest of both sides and consider whether it is fair to the defendant to permit the action to proceed as well as whether striking out the action is fair to the plaintiff.

Mr Justice Eager, presiding over the case, found that the delay was understandable but even in instances where any lull in proceedings was both inexcusable and inordinate, the court must use its discretion to decide whether it is in the best interests of justice to allow the case to proceed.

In this instance, the court found that the delay was in fact inordinate but the delay was partially due to the failure of Mr Gorman to issue a defence. After taking all circumstances into account, the court exercised its discretion with regard to the basic principles of fairness and allowed Mr and Mrs Arthur to continue their home defect case against Mr. Gorman.


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