Some of the 18 almost-identical homes built in the suburb of Bellamack — as a part of a government-backed affordable housing scheme — have already been demolished and replaced after residents complained of structural defects, leaks and buildings that rocked in the wind.
But the five remaining residents are facing yet another wet season living with cracked and lifting tiles, extensive corrosion and water ingress when it rains.
They also live with the knowledge that expert advice has recommended their homes should also be bulldozed after warning they could collapse in extreme weather.
In October last year, after an almost decade-long legal battle in the NT Civil and Administrative Tribunal (NTCAT), George Milatos was ordered to pay each of the five residents between $497,000 and $722,000.
The tribunal agreed with the Commissioner of Residential Building Disputes, who had found the construction of the homes contravened the consumer guarantees set out in the Building Act.
The commissioner also found that, given the extent of the defects, the only practicable way forward was to demolish and rebuild the homes.
‘Responsibility lies elsewhere’
In appealing the tribunal’s decision in the NT Supreme Court on Tuesday, Mr Milatos’s lawyer, Nicholas Floreani KC, argued that “responsibility lies elsewhere”, and that the liability of other parties involved in the building process shouldn’t have been dismissed.
Mr Floreani told the court that the tribunal denied Mr Milatos procedural fairness and prevented him from providing evidence that other parties, such as engineers and contractors, were “blameworthy”.
He told the court that the tribunal “misconstrued the scope of its own jurisdiction” and should have transferred the case to the NT Local Court or Supreme Court.
“What we say should have happened is the tribunal should have permitted material to be brought before it so a consideration could be given as to the blameworthiness of others,” Mr Floreani said.
Mr Floreani said the tribunal’s “errors” had unfairly resulted in the builder picking up the entire bill.
“It’s clear that the errors of law are such that they vitiate the compensation decision,” he said.
“A builder builds in accordance with the plans and certifications, if they are wrong that’s not the builder’s problem … it’s either the developer or the engineer’s problem.
“What we are challenging is this compensation determination because what we say is the way it was dealt with shut us out of a legitimate defence which could have reduced … the quantum of any of [Mr Milatos’s] liability to zero.”
However, lawyer for the commissioner, Dr Cameron Ford, told the court the appeal was too late, and that Mr Milatos had been afforded “ample opportunity” over the years to raise the issue of who was to blame and who was liable.
Dr Ford said “very detailed” technical inspections had taken place following allegations that the buildings were riddled with defects.
“That is the time to be determining whether someone else caused those defects,” he said.
Dr Ford also told the court that the crux of Mr Milatos’s appeal was “futile” as the Supreme Court and Local Court had no greater jurisdiction to deal with the dispute than the commissioner who made the original findings.
Justice Jenny Blokland reserved her decision.