In the recent Appeal Panel decision of BKB Constructions Pty Ltd v Sawan  NSWCATAP 103, a builder was held to be unable to enforce:
Tough lessons, in each instance, about the operation of the Act. We break down the decision below.
The facts were as follows:
The builder initially commenced proceedings in the Local Court in July 2019, seeking to recover the amount of its final invoice dated 17 December 2018. Those proceedings were moved to the Tribunal by consent. The owner commenced proceedings in the Tribunal in September 2019.
In an interlocutory decision in December 2019, the Tribunal queried its jurisdiction to deal with the builder’s claim, which was made more than three years after the date of the contract, having regard to the operation of section 48K(8) of the Act.
That section provides:
“(8) The Tribunal does not have jurisdiction in respect of a building claim relating to--
(a) a contract for the supply of goods or services to which none of subsections (3), (4), (6) and (7) applies, or
(b) a collateral contract,
if the date on which the claim was lodged is more than three years after the date on which the contract was entered into.”
At trial in 2021, the Tribunal considered the jurisdiction issue further, although this had not been addressed in written submissions by either party.
The Tribunal found that:
The builder’s grounds of appeal were:
Although the first ground of appeal was not pressed at trial, the Appeal Panel noted that it was clear that the limitation period in section 48K(3) did not apply as that section concerned supply to or for a claimant. That section is set out below for convenience:
“(3) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made).”
A builder seeking to recover a debt in the Tribunal must meet the time restriction in section 48K(8) of the Act rather than section 48K(3). Given that the builder’s claim had been commenced more than three years after the contract date, the Tribunal did not have jurisdiction to hear it (although a Court may).
In relation to grounds 2 and 4, the Appeal Panel found that the builder had not been denied procedural fairness, as:
The decision shows that the Tribunal will look behind the mere existence of a certificate of insurance. It also serves as a reminder that builders face onerous consequences should they fail to adequately insure the works:
Additionally, proper attention must be paid to limitation periods, given that the Tribunal’s jurisdiction arises only by statute. In some instances, claims can be conducted in the court, but not the Tribunal, and there is no obligation on the Tribunal, or the other parties to a claim, to make legally represented parties aware of this.
Authors: Christine Jones & Nicholas Achurch
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Australian Bureau of Statistics – Building Approvals, Australia
The seasonally adjusted estimate for total dwellings approved fell 18.5 per cent. Private sector houses fell 3.0 per cent, while private sector dwellings excluding houses fell 29.9 per cent (March 2022: released 5 May 2022). Read more here.
Understanding the NCC – gutter and downpipe provisions for housing
This Australian Building Codes Board explainer provides information for selecting and installing gutters and downpipes, including overflow measures for housing (May 2022). Read more here.
Australian Building Codes Board – liveable housing design
This Australian Building Codes Board Standard provides a set of technical provisions that if complied with will enable dwellings to better meet the needs of the community, including older people and people with mobility limitations (9 May 2022). Read preview here.
Australian Building Codes Board – 2022/1.0 acceptable copper alloys for the manufacture of lead free plumbing products
This notice is to provide direction on the material to be used in the manufacture of plumbing products, which contain copper alloy and are intended for use in contact with drinking water, to achieve compliance with the lead free requirements outlined in the NCC 2022 Volume Three (9 May 2022). Read ABCB Notice of Direction 2022/1.0.
NSW Fair Trading – JKN Hills Pty Ltd Building Work Rectification Order 299–309 Old Northern Road, Castle Hill NSW 2154
JKN Hills Pty Ltd is required to carry out building work to eliminate, minimise, or remediate the serious defects or potential serious defects as set out in Schedule A to this Order. Failure to comply with this Order is a criminal offence (6 May 2022). Read more here.
Davis v Seachange Living NSW Pty Ltd  NSWCATAP 142
APPEALS – procedural fairness – adequacy of reasons.
LEASES AND TENANCIES – legislation protecting tenants – Residential (Land Lease) Communities Act 2013 (NSW) – whether the Tribunal has jurisdiction to determine a collective application where the application for mediation had not been signed by the required percentage of home owners – whether the increase in site fees notified by the operator was excessive.
Civil and Administrative Tribunal Act 2013 (NSW), ss 41, 80, Sch 4, cl 12.
Civil and Administrative Tribunal Rules 2014 (NSW), r 25; Home Building Act 1989 (NSW), s 48J; Residential (Land Lease) Communities Act 2013 (NSW), ss 69, 71, 73, 74; Residential (Land Lease) Communities Regulation 2015 (NSW), cl 15.
Knobloch v Curtis; Curtis v Knobloch  NSWCATAP 140
BUILDING AND CONSTRUCTION – contract interpretation – question of law – right to suspend for non-payment progress payment – no error of law; appeal – adequacy of reasons.
Civil and Administrative Tribunal Act 2013 (NSW).
Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd  NSWSC 519
CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – third and fourth defendants operate residential development business through second defendant – second plaintiff through her agent arranges for residential development project with third and fifth defendants – first defendant incorporated to purchase land on unit trust for second plaintiff, third defendant and fifth defendant themselves as trustees of separate discretionary trusts – plaintiffs claim enforcement of contract between unit holders containing clause giving rise to breach of contract by third defendant and liability of first defendant to second plaintiff for loan at substantial interest rate – whether particular clause of contract void for misleading or deceptive conduct by agent of second plaintiff – development arrangements made in quasi-familial context – request by third defendant of agent of second plaintiff whether legal or financial advice required in respect of contract – response by agent of second plaintiff that contract contained ‘standard’ or ‘simple’ terms – failure by agent of second plaintiff to bring third defendant’s attention to unusual term – declaration that particular clause void ab initio.
EQUITY – trusts and trustees – breaches of trust – plaintiffs claim that first defendant as corporate trustee breached its duties by securing loan over trust property to pay other corporate vehicle of third and fourth defendants – plaintiffs claim that first defendant breached its duties by making unauthorised repayment of third and fifth plaintiffs’ contribution to development arrangement – plaintiffs claim that first defendant breached its duties by entering into costs agreement with defendants’ solicitors – plaintiffs seek replacement of first defendant as trustee of unit trust – plaintiffs seek account of unit trust.
AGENCY – liability of principal – relations between principals and third parties – second plaintiff bound by misleading or deceptive conduct of agent in respect of third defendant.
Australian Consumer Law, ss 18, 237, 243; Fair Trading Act 1987 (NSW), s 28; Competition and Consumer Act 2010 (Cth), Sch 2; Trustee Act 1925 (NSW), s 70.
Reid & Robinson Builders Pty Ltd trading as John Robinson Elite Constructions v Cleal  NSWCATAP 137
COSTS – party/party – appeals – where Appellant unsuccessfully challenged interlocutory order transferring proceedings to District Court – whether s 60 of the Civil and Administrative Tribunal Act 2013 or Rule 38A of the Civil and Administrative Tribunal Rules 2014 governed application for costs of the appeal – held that Rule 38A applied – unsuccessful Appellant ordered to pay Respondent’s costs.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Interpretation Act 1987 (NSW); Limitation Act 1987 (NSW).
Teng v FEV Mono Constructions (No 2)  NSWCATCD 36
COSTS – Civil and Administrative Tribunal Act 2013 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW).
Environmental Planning and Assessment Amendment (Climate Change Response) Bill 2022 – 12 May 2022
Environmental planning instruments
Blue Mountains Local Environmental Plan 2015 (Amendment No 14) LW 13 May 2022
Gosford Local Environmental Plan 2014 (Map Amendment No 1) LW 13 May 2022
Ku-ring-gai Local Environmental Plan 2015 (Map Amendment No 2) LW 13 May 2022
Liverpool Local Environmental Plan 2008 (Map Amendment No 3) LW 13 May 2022
Tweed Local Environmental Plan 2014 (Amendment No 35) LW 13 May 2022
Willoughby Local Environmental Plan 2012 (Amendment No 23) LW 13 May 2022
Byron Local Environmental Plan 2014 (Amendment No 33) LW 6 May 2022
Dungog Local Environmental Plan 2014 (Amendment No 10) LW 6 May 2022
Lithgow Local Environmental Plan 2014 (Map Amendment No 1) LW 6 May 2022
Mid-Western Regional Local Environmental Plan 2012 (Amendment No 26) LW 6 May 2022
Parramatta Local Environmental Plan 2011 (Amendment No 56) LW 6 May 2022
Port Stephens Local Environmental Plan 2013 (Amendment No 38) LW 6 May 2022
Shellharbour Local Environmental Plan 2013 (Amendment No 25) published LW 6 May 2022
State Environmental Planning Policy (Planning Systems) Amendment (State Significant Development–Cemeteries) 2022 LW 6 May 2022
The Hills Local Environmental Plan 2019 (Amendment No 22) LW 6 May 2022
The Hills Local Environmental Plan Amendment (North Kellyville Precinct) 2022 LW 6 May 2022
Willoughby Local Environmental Plan 2012 (Amendment No 22) LW 6 May 2022
Wollondilly Local Environmental Plan Amendment (Precincts–Western Parkland City) 2022 LW 6 May 2022
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 article is accurate at the date it is received or that it will continue to be accurate in the future.