14 April 2023
14 min read
#Property, Planning & Development, #Construction, Infrastructure & Projects
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In a recent decision (Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66) concerning the period of time within which parties may commence proceedings under section 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA), the Appeal Panel held that the NSW Civil and Administrative Tribunal (NCAT) has power to extend that time period, arising under section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
An initial application sought to be filed by the applicant (for damages for breach of the duty to repair and maintain common property under section 106(5) of the SSMA and an order for access to records) was not accepted because compulsory mediation (albeit relevant only to the order sought under section 106) had not been attempted (the First Proceedings). A subsequent mediation was unsuccessful.
A further application was filed, seeking the same orders as in the First Proceedings (the Second Proceedings).
The respondent owners corporation argued that the Second Proceedings were brought beyond the two-year limitation period (in section 106(6) of the SSMA) after the owner first became aware of the loss.
At first instance, NCAT agreed and considered whether it could extend time under section 41 of the NCAT Act which provides:
“41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.”
NCAT found that this section could not extend time under section 106(6) of the SSMA because:
NCAT relied on S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 (S&G Homes) in which the Appeal Panel held that section 41 of the NCAT Act did not empower the Tribunal to extend the time for bringing proceedings referred to in sub-sections 48K(3), (4), (6) and (7) of the Home Building Act 1989 (NSW) (HBA), where the facts referred to in those sub-sections are pre-conditions to the exercise of the Tribunal’s jurisdiction.
The Appeal Panel did not agree that the temporal element in section 106(6) of the SSMA is a jurisdictional fact. Further, the Appeal Panel considered that even if it was, there was no authority to suggest that it would be beyond the power of Parliament to provide for its extension, rather, the issue was a matter of statutory interpretation.
The Appeal Panel referred to the principles of statutory interpretation as summarised in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, that “the process of construction must always begin by examining the context of the provision that is being construed” and that a court must “give effect to harmonious goals” of legislative instruments.
The Appeal Panel was satisfied that the Tribunal had general jurisdiction under section 232 of the SSMA and jurisdiction to make interlocutory decisions in proceedings under which it has general jurisdiction, under section 29(2)(a) of the NCAT Act. Noting that the definitions of interlocutory decision and legislation in section 4 of the NCAT Act permit an interlocutory decision regarding the application of the NCAT Act, the Appeal Panel found that the combined effect of section 232 of the SSMA and sections 4 and 29(2)(a) of the NCAT Act provided the Tribunal with general jurisdiction over a matter involving the SSMA, “including jurisdiction to make an interlocutory decision to extend the period of time for the doing of anything under the SSMA (being ‘any legislation in respect of which the Tribunal has jurisdiction’) despite anything to the contrary under that legislation.”
The Appeal Panel distinguished this position from section 48K of the HBA, considered in S & G Homes, given the limited jurisdiction established in section 48K of the HBA, as opposed to the broad jurisdiction conferred by section 232 of the SSMA. Further, the Appeal Panel noted that the limitations in sub-sections 48K(3), (4), (6) and (7) of the HBA are each expressly directed to the Tribunal, whereas section 106(6) of the SSMA is directed to the owner.
The Appeal Panel interpreted section 41 of the NCAT Act as overriding any provision to the contrary in legislation which confers general jurisdiction on the Tribunal and rejected the Tribunal below’s narrow reading of the section.
Accordingly, the Appeal Panel found that the Tribunal had erred in its decision that the time limit under section 106(6) of the SSMA could not be extended through section 41 of the NCAT Act.
The Appeal Panel cautioned that this result did not give permission to owners to sit on their hands, they would still need to convince the Tribunal that time should be extended.
Although the Appeal Panel carefully wove a distinction between section 106(6) of the SSMA and sub-sections 48K(3), (4), (6) and (7) of the HBA, thus preserving S & G Homes, the reach of section 41 is unlikely to have been determined for all time.
Authors: Christine Jones & Simona Njaim
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Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 [2023] NSWSC 343
BUILDING AND CONSTRUCTION – contract – damages – defects – whether builder entitled to payment of invoices sued upon – whether building work incomplete – whether building work defective – whether cost of rectifying defects proved – whether owners entitled to claim for Hungerfords interest – whether director in breach of the duty prescribed by the Design and Building Practitioners Act 2020 (NSW).
Design and Building Practitioners Act 2020 (NSW); Environmental Planning and Assessment Act 1979 (NSW) and Home Building Act 1989 (NSW).
Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94
APPEAL – decision of Consumer and Commercial Division – purchase of a lot in a strata scheme upon which a dwelling was to be built – alleged breach of statutory warranties in s 18B of the Home Building Act 1989 (NSW) in respect of the dwelling as built – claims by purchaser against the developer and the builder under ss 18C and 18D – purchaser a successor in title within the meaning of that term in ss 18C and 18D – alleged completion of purchase of lot with knowledge of building defects – whether the Tribunal was correct to consider that decision by purchaser to complete with notice or assumed knowledge of defects in light of the non-exercise of potential redress under the conveyance contract between the purchaser and the developer precluded application of statutory warranties – jurisdiction of Tribunal in relation to additional claim under the Design and Building Practitioners Act 2020 (NSW) – questions of law raised on appeal – appeal upheld – costs – remitter to differently constituted Tribunal.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Design and Building Practitioners Act 2020 (NSW) and Home Building Act 1989 (NSW).
Dubow v Liddell [2023] NSWCATAP 93
CONTRACTS – oral contract – formation – offer and acceptance – terms of contract – sufficiency of evidence – no question of principle.
CIVIL PROCEDURE – hearings – procedural fairness – excessive intervention – indicia of – no question of principle.
Civil and Administrative Tribunal Act 2013 (NSW).
McIntosh v Lennon [2023] NSWCATAP 83
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – owner – father purchases property in the name of his daughter – resulting trust – presumption of advancement rebutted – beneficiary of resulting trust within the definition of “owner” in the Home Building Act.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – owner-builder – owner-builder undertakes residential building work without an owner-builder permit – definition of owner-builder in the Home Building Act – proper interpretation of definition of owner-builder – legal meaning differs from literal meaning – definition includes owner-builders who undertake residential building work without a permit – alternatively, permissible to read definition as if it contained additional words – principles to apply when reading additional words into statute.
Home Building Act 1989 (NSW) and Home Building Amendment Act 2014 (NSW).
Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90
APPEAL – whether Tribunal lacked jurisdiction having regard to the date of lodgement of the application – jurisdiction point not raised at first instance – calculation of quantum – whether there was procedural fairness – whether homeowners made a claim for breach of representations including whether representations were an implied term of the contract.
Competition & Consumer Act 2010 (Cth) and Home Building Act 1989 (NSW).
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61
PROCEDURE – application for leave to lodge caveat – interest in land created under Home Building Act 1989 (NSW), s 7D – leave required where earlier caveat allowed to lapse – attempt to prevent earlier caveat lapsing – no significant delay – interest in land based on assessed costs – judicial review of judgment dismissing appeal from costs assessment – limited prospects of success.
Home Building Act 1989 (NSW); Real Property Act 1900 (NSW) and Supreme Court Act 1970 (NSW).
O’Loughlin v Commissioner for Fair Trading [2023] NSWCATAP 87
OCCUPATIONAL – application for restoration of builder’s licence previously held by appellant – whether failure to renew due to inadvertence – whether just and equitable to restore licence – application for new builder’ licence or supervisor certificate – necessary qualifications for a licence or certificate – transitional arrangements.
LEAVE TO APPEAL – where grounds for leave to appeal are not established.
Home Building Act 1989 (NSW) and Civil and Administrative Tribunal Act 2013 (NSW).
AGY Global Wealth Pty Ltd v Gillies [2023] NSWCATAP 85
APPEAL – Notice of Appeal – filed outside of the prescribed time – whether extension of time should be granted – no sound recording or transcript of the Tribunal’s oral reasons for decision filed – extension of time refused.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW) and Home Building Act 1989.
NSW Legislation
Regulation and other miscellaneous instruments
Environmental Planning Instruments
Great Lakes Local Environmental Plan 2014 (Map Amendment No 4) – published LW 6 April 2023.
Port Macquarie-Hastings Local Environmental Plan 2011 (Map Amendment No 4) – published LW 6 April 2023.
Shellharbour Local Environmental Plan 2013 (Map Amendment No 2) – published LW 31 March 2023.
Shellharbour Local Environmental Plan 2013 (Map Amendment No 1) – published LW 31 March 2023.
Canada Bay Local Environmental Plan 2013 (Amendment No 23) – published LW 31 March 2023.
Commonwealth Legislation
Act Compilation
Fair Work Act 2009 31/03/2023 – Act No 28 of 2009 as amended.
Regulation and other miscellaneous instruments
Fair Work Regulations 2009 6/04/2023 – as amended.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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