A successor in title under s 18D of the Home Building Act 1989 (NSW) is entitled to the same measure of damages as the original contracting party for breach of statutory implied warranties, including the cost of demolition and reinstatement to achieve conformity with contractual specifications. The absence of actual failure of a defective building element does not preclude recovery where the element as installed is inferior to that specified and creates a risk of future failure; the plaintiff's loss is the absence of the risk-free system it was entitled to have. A builder or insurer bears at least an evidentiary onus of proving functional equivalence of the work as performed to that specified. Payment of a judgment debt under the statutory indemnity before commencement of the Home Building Amendment (Insurance) Act 2009 falls within the transitional savings provision in cl 83(2)(d) even where an appeal is pending.
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