Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

Residential Focus

22 September 2021

#Property, Planning & Development

Residential Focus

Design & Building Practitioners Act 2020 (NSW) – a year in review

In this article, we review some of the cases which have considered the Design and Building Practitioners Act 2020 (NSW) (Act) and Design and Building Practitioners Regulation 2020 (NSW) (Regulation) in the past 12 months.  

There are still only a handful of cases that consider the Act, given its relative infancy. However, the cases considered below demonstrate the importance of the Act to all design and building practitioners as they explain how the Act will impact daily practices and affect existing obligations under the Home Building Act 1989 (NSW) (HBA).

Ericon Buildings Pty Ltd v Owners Strata Plan No 96597 [2020] NSWCATAP 265

The key significance of this case is that the Appeal Panel formed the preliminary view that the NSW Civil and Administrative Tribunal (NCAT) has the power to issue a work order for an amount greater than $500,000, on the basis that a claim for a work order is not a building claim within the meaning of section 48A(1) of the HBA, and therefore is not subject to the $500,000 jurisdictional cap of NCAT on building claims.

However, in summarising the parties’ submissions, the Panel noted the respondent owners corporation’s submission that it wanted the matter transferred from NCAT to the Supreme Court because of the availability in court, but not in the Tribunal, of relief under the Act.

The Panel did not provide its views on that submission as it was not relevant to the issue in dispute.

Owners SP 92648 v Binah Constructions PL [2021] NSWCATAP 68

In this case, the NCAT Appeal Panel (Panel) considered the relationship between the statutory warranties in section 18B of the HBA (Warranties) and the duty of care of Part 4 of the Act (Duty). It also considered the issue raised in Ericon about whether a claim for breach of the Duty falls within NCAT’s jurisdiction and the applicable time limits for making such a claim.

In its decision, the Panel concluded that:

  • the scope of the Warranties overlaps with the scope of the Duty as each requires the exercise of reasonable care to avoid economic loss caused by defects
  • both the Warranties and the Duty are owed to each current and subsequent owner of the land on which work is carried out
  • a claim for breach of the Duty arguably falls within the scope of a "building claim" as defined in section 48A(1) of the HBA, which includes a claim for the payment of money arising from the supply of building goods or services
  • the time limits in section 48K of the HBA will apply to a claim for breach of the Duty if the claim is determined in NCAT. Of note, that period is shorter than the time limits that apply if the same claim was made in a court.

Gardner and Board of Professional Engineers of Queensland [2021] AATA 93 and Professional Engineers of Queensland v Gardner [2021] FCA 564

This matter involved an application by an engineer for recognition as a fire safety engineer in Queensland on the basis that he held accreditation in NSW as Certifier-fire safety (first under the Building Professionals Act 2005 (NSW) and subsequently under the Building and Development (Certifiers) Act 2018 (NSW) which came into force on 1 July 2020).

The Queensland Board of Professional Engineers (Board) refused to recognise the applicant under the Mutual Recognition Act 1992 (Cth) (MRA). This decision was overturned on appeal to the Queensland Administrative Appeals Tribunal (AAT).

In reaching its decision, the AAT noted that while there is no national approach for the registration of engineers, the Act has put in place in NSW, for the first time, a scheme for the registration of professional engineers and other defined practitioners, “albeit in a haphazard manner”. The AAT then concluded that, based on a common sense approach, the applicant’s occupation in NSW was equivalent to the role for which he had applied.

The Board subsequently appealed to the Federal Court, who overturned the AAT’s decision on the basis that there is a lack of any consistent standard for the accreditation of engineers in the two states, and so the applicant did not satisfy the “equivalence test” for mutual recognition under the MRA.

BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129

The key issue, in this case, was whether a defendant builder should be granted leave to rely on evidence served after the completion of the final hearing of the matter, including evidence said to support a defence under section 18F of the HBA.

Section 18F provides a defence to a claim for breach of the Warranties in circumstances including where the defendant can prove that the deficiencies arise from reasonable reliance by the defendant on instructions given by a person who is a relevant professional acting for the person for whom the work was contracted to be done and who is independent of the defendant.

In determining the appeal, the Panel noted that a “relevant professional” in section 18F(4) of the HBA now includes a person who represents himself to be an architect, registered design practitioner or registered principal design practitioner (within the meaning of the Act), engineer or surveyor.

Conclusion

While the above cases provide guidance on some important questions arising from the Act, there is as yet no cases on other key questions relating to the scope and application of the Act and Regulation, including:

  • the building classes to which the Duty applies, given the competing interpretations available and the drafting distinction compared to the compliance provisions of the Act
  • how the Land and Environment Court of NSW will exercise its Class 2 jurisdiction to assist authorised officers under the Act.

We will provide a further overview of the cases regarding the Act once the courts and tribunals provide further guidance on these matters.

Authors: Christine Jones & Marie-Louise Scarf 

In the media

New home sales remain strong in August
The strength in new home sales in recent months indicates that the boom in detached home building will continue to create strong employment opportunities into the second half of 2022 (15 September 2021).  More...

Australia now faces its worst material shortage in over 40 years
Pandemic-related international supply chain issues have left Australia with a debilitating downside to its earlier than anticipated economic revival. The country now faces its worst material shortage in over 40 years, with the construction sector struggling to find innovative solutions (10 September 2021).  More...

Construction industry’s cultural issues cost $8 billion annually
A major report into the construction industry demonstrates urgent change is needed to address cultural issues that are costing the economy nearly $8 billion annually due to workplace injuries, mental illness, suicide, long work hours and a lack of diversity (09 September 2021).  More...

NSW Government safeguarding against building site incidents
The NSW Government is taking a proactive step towards eliminating unsafe work on ladders, roofs and scaffolds on building sites in a bid to better protect tradespeople and construction workers across the state (07 September 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
31 August 2021: Building approvals, Australia

Practice and courts

Renew: Households better off: Lowering energy bills with the 2022 National Construction Code
With the National Construction Code set to be updated in 2022, renew modelled the energy use, energy bills and upfront costs of homes to test the impact of better energy performance. The findings, contained in the new report Households better off: Lowering energy bills with the 2022 National Construction Code are included here.

Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key dates in the amendment cycle process for NCC 2022 to allow stakeholders time to participate. These adjusted dates include:
May – July 2021: NCC 2022 public comment draft released for public consultation.
May 2022: NCC 2022 preview published at ncc.abcb.gov.au.
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

Guide for design practitioners and engineers
Consult Australia, Engineers Australia and the Australian Institute of Architects have joined forces to develop the Guide for design practitioners and engineers to help their members tackle the recent NSW building confidence reforms. There are multiple new obligations on design practitioners, engineers and building practitioners throughout the life of a building under the NSW Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021.

Cases

NSW

Bell Solar Pty Limited T/as Sunboost v Anderson [2021] NSWCATAP 278
APPEALS – home building – exercise of discretion under section 48MA of the Home Building Act 1989 (NSW) – adequacy of evidence of damages.

Ly v Super Demolitions Pty Ltd [2021] NSWCATAP 276
(1) The appeal is allowed; (2) The decision of the tribunal dismissing proceedings GEN 20/51359 is set aside; (3) The matter is remitted to the tribunal, differently constituted, to be determined according to law, with such new evidence as the tribunal may permit.
APPEAL – adequacy of reasons – whether the tribunal engaged with the cases of each party.
The dispute between the parties concerns a contract for the demolition of residential premises at Ryde, New South Wales. The appellant commenced proceedings seeking an order for the refund of $3,500 paid for the removal of asbestos. In addition the appellant sought orders for damages in the sum of $12,500 for the reconstruction of the driveway and the carport that were demolished contrary to her specific instructions.

Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273
APPEAL – NCAT – appeal from decision of Consumer and Commercial Division of NCAT – calculating three year time limit for bringing application for defective home building works under the Home Building Act – breach of contract – no claim for breach of statutory warranties – tribunal found time runs from date of occupation certificate – alternative claim by respondent that time runs from date of practical completion – error of law – inadequate reasons – fresh evidence – time runs from the date on which the supply of goods and services was last made.

B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – duty to mitigate loss – section 18BA – duty to provide access – extent of duty to provide access to attempt rectification of defective windows which had previously been removed and replaced – breach of statutory warranties – measure of compensation – onus lies on applicant to establish that building costs incurred were required in order to bring the work into conformity with the contract.

Ali Soukarie t/as A1 SKR Concrete v Krallis [2021] NSWCATAP 267
(1) Leave to appeal refused. (2) Appeal dismissed.
APPEAL – building claim – decision said to be against the weight of the evidence – no substantial miscarriage of justice – leave to appeal refused Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

My Energy Group Pty Ltd v Doan [2021] NSWCATAP 265
APPEAL – procedure – directions requiring production of audio recording – audio recording and transcript not available for hearing – inability of appeal to be heard in the absence of reasons – appellant unable to access audio due to COVID limitations – hearing adjourned subject to conditions until audio recording is available.
My Energy sued the respondent (Huy Doan hereafter referred to as “Doan”) in respect of the cost of supply and installation of solar panels upon the roof of the respondent’s rented shop the premises.

Gittany v Kesuma [2021] NSWCATAP 264
(1) The order made in HB 20/39162 on 15 April 2021 is varied to read: “Joseph Gittany must pay Edy Kesuma the sum of $88,236.77 immediately”.
APPEAL – NCAT – appeal from decision of Consumer and Commercial Division – appellant failed to comply with work order – application by respondent to renew proceedings to claim a money order – at the date of the hearing for the money order the property the subject of the work order had been sold – money order made – proper approach to allowing rectification damages after sale of property – appellant claimed renewal application misconceived as no loss suffered – alleged abuse of process – alleged denial of procedural fairness.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Howell v Talevski [2021] NSWSC 1133
BUILDING AND CONSTRUCTION – residential building work – construction of duplex – whether proceedings brought out of time – whether building work carried out with due care and skill.

Legislation

Environmental planning instruments
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (No 2) 2021 (2021–544) – published LW 17 September 2021

Proclamations commencing Acts
Bushfires Legislation Amendment Act 2020 No 37 (2021–523) – published LW 10 September 2021

Regulations and other miscellaneous instruments
Electricity Infrastructure Investment Amendment Regulation 2021 (2021–525) – published LW 10 September 2021
Petroleum (Onshore) Amendment Regulation 2021 (2021–526) – published LW 10 September 2021

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 article is accurate at the date it is received or that it will continue to be accurate in the future.

Share this