(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.
