Residential Focus - 1 February 2017

Under section 18E of the Home Building Act 1989 (the Act), the fact that a person has enforced a warranty under section 18B in relation to a particular deficiency in the work does not prevent the person from enforcing the same warranty for a deficiency of a different kind in the work (the other deficiency) if:

1. the other deficiency was in existence when the work to which the warranty relates was completed;
2. the person did not know of the existence of the other deficiency when the warranty was previously enforced; and
3. the proceedings to enforce the warranty in relation to the other deficiency are brought within the relevant period.

This begs the question: what does 'enforced' mean? There is no definition, or legally recognised meaning of 'enforced' in section 18E(2). It is notable that previous forms of the subsection had the words "in proceedings" after the words "enforced the warranty".