28 September 2023
The Tribunal’s jurisdiction under section 48K of the Home Building Act 1989 (NSW) (HBA) is full of curiosities. For example, although many causes of action for building claims have a limitation period of six years, they can only be brought in the Tribunal (as opposed to elsewhere) within three years of the supply.
It has long been a source of confusion as to whether these shorter limitation periods operate as a constraint on statutory warranty claims and how the various periods interact.
The issue was revisited in Promina Design & Construction v the Owners Strata Plan No 97449  NSWCATAP 252, where the Appeal Panel considered it in the context of determining whether the Tribunal had the power to transfer proceedings to the District Court. The Appeal Panel considered whether section 48K of the HBA, specifically subsections (3) and (7), deprived the Tribunal of jurisdiction to make an order to transfer the proceedings.
The claim for breach of statutory warranty before the Tribunal originally sought $480,000, an amount within the jurisdiction of the Tribunal. Subsequently, experts assessed the claim at more than $500,000 and an application was made to transfer the proceedings to the District Court.
The transfer was opposed on the basis that:
The Tribunal found that section 48K(3) did not apply as the claim was not a “building claim”. Rather, it was a claim for a breach of statutory warranty, with a limitation period of six years for major defects according to section 18E of the HBA.
The basis of the appeal was that the Tribunal erred in finding:
The Appeal Panel found that the proper interpretation of section 48K, sub-sections (3), (4), (6), (7) and (8) is that each class of claim stands independently so that the subsections are mutually exclusive. By way of example, the general provision limiting the jurisdiction of the Tribunal in section 48K(3) does not limit the jurisdiction of the Tribunal in respect of the specific matters the subject of a different limitation in section 48K(7).
Author: Christine Jones & Caitlyn Trussell
AIA welcomes NSW housing budget
The Australian Institute of Architects (AIA) NSW Chapter has welcomed the recent NSW housing supply Budget initiatives. President Adam Haddow said AIA would continue to assess the details of the initiatives and their implementation, strongly encouraging the Government “to invest in well-connected existing suburbs to achieve the state’s housing goals rather than relying on disconnected and poorly performing greenfield development” (25 September 2023). Read more here.
Border Blitz reveals numerous safety issues
SafeWork NSW and WorkSafe Victoria have visited 22 building sites in Yarrawonga and Mulwala as part of a joint-agency operation to boost construction safety. SafeWork NSW Executive Director Matt Press said with falls from heights being the number one killer in the construction industry, inspectors were taking a zero-tolerance approach to unsafe practices and issued one penalty notice (20 September 2023). Read more here.
Government’s $10billion Housing Australia Future Fund passes parliament
The $10 billion Housing Australia Future Fund (HAFF) has passed parliament, paving the way for new social and affordable homes to be built. Under the plan, 30,000 new buildings will be built over five years, but there is no timeline for when construction will begin. (14 September 2023). Read more here.
Technical Specification for the WaterMark Certification Scheme – For Public Comment Draft Round 1
The Australian Building Codes Board opened this Technical Specification for public comment on 13 September 2023 and closes on 10 November 2023. The Draft sets out requirements for plastic bodied couplings with included elastomeric element to provide limited flexibility and utilised in non-pressure rigid pipeline systems (13 September 2023). To review the draft document and/or make a comment, click here.
Have your say – Women in Construction
The NSW Government is open for contributions in the “Have Your Say Women in Construction” consultation until 8 October 2023. This consultation aims to better understand how gender influences people’s experiences and views on working in the construction industry and find ways to improve it. To share your feedback or take part in the survey for the Office of the Building Commissioner, click here. To read the NSW Building Commissioner’s media release (5 September 2023), read here.
Higher quality homes and better protections for New South Wales consumers
The Minns Labor Government has delivered a budget to build more high-quality homes with a down-payment of $24 million to establish the New South Wales Building Commission. The creation of a standalone Building Commission will allow NSW Fair Trading to core business: protecting consumers (19 September 2023). Read more here.
Housing Australia Future Fund legislation passed
The Housing Australia Future Fund legislation has finally passed through the Senate. This paves the way for the establishment of the Housing Australia Future Fund. The Housing Australia Future fund will receive funding of $10 billion and is tasked with supplying 30,000 new social and affordable homes (14 September 2023). Read more here.
Brow v Max Pattison Pty Ltd and Travis-Almond  NSWCATCD 86
REAL PROPERTY – BUILDING and CONSTRUCTION – HOME BUILDING – rights on termination of contract – entire contract with progress payments on account – substantial failure of consideration – refund of monies paid.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
Anand and Anand v Macasa Homes Pty Ltd; Anand and Kaur v Macasa Homes Pty Ltd; Anand v Macasa Homes Pty Ltd; Singh v Macasa Homes Pty Ltd  NSWCATCD 76
HOME BUILDING – recovery of payment under a preliminary agreement.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).
Jones v The Owners – SP 93087  NSWCATCD 73
LAND LAW – Strata scheme – s 237 Strata Schemes Management Act 2015 (NSW) – appointment of compulsory strata manager – where compulsory strata manger already appointed – whether circumstances justify a further appointment of compulsory strata manager – whether circumstances justify extension of the existing order.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989; Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020; Strata Schemes Management Act 2015.
Vasan v Georges Construction & Building Services Pty Ltd  NSWCATCD 84
BUILDING & CONSTRUCTION: Residential building work – work by unlicensed Builder – work incomplete and in breach of warranties in Home Building Act.
Home Building Act 1989; Civil and Administrative Tribunal Act 2013.
Gilliland v Kingdom Building Pty Ltd  NSWCATCD 87
COSTS – where proceedings not determined on the merits.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules (NSW) 2014; Home Building Act 1989 (NSW).
Mazurek v Fisniku  NSWCATCD 81
BUILDING AND CONSTRUCTION – whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination.
ESTOPPEL – promissory estoppel – estoppel by convention.
BUILDING AND CONSTRUCTION – cost of completion – alleged overcharging – storage costs.
Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 60; Civil and Administrative Tribunal Regulation (NSW); Civil and Administrative Tribunal Rules 2014 (NSW) – rr 38, 39; Civil Procedure Act 2005 (NSW) – s 100; Home Building Act 1989 (NSW) – s 18B.
Olcayto v Paintalo Group Pty Ltd  NSWCATCD 95
BUILDING & CONSTRUCTION – Waiver Repudiation – defects – section 79O of the Fair Trading Act 1987.
Fair Trading Act 1987; Home Building Act 1989; Home Building Regulation 2014.
Chalhoub v Commissioner for Fair Trading  NSWCATOD 142
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to refuse contractor licence pursuant to the Home Building Act 1989 (NSW) – fit and proper person. Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Firearms Act 1996 (NSW); Home Building Act 1989 (NSW).
Goodman v Commissioner for Fair Trading  NSWCATAP 260
OCCUPATIONAL – Home Building Act 1989 (NSW) – application for restoration of supervisor certificate previously held by appellant – whether appellant took all reasonable steps to avoid external administration – whether appellant is a fit and proper person – whether error established.
Administrative Disputes Review Act (NSW) 1997 s63; Civil and Administrative Tribunal Act 2013 (NSW) s 80(2); Home Building Act 1989 s25(1)(a), s33B, 33D.
The Owners Strata Plan 64757 v Sydney Remedial Builders Pty Ltd  NSWSC 1127
BUILDING AND CONSTRUCTION – builder retained to repair defects caused by original builder – whether proceedings for breach of statutory warranty commenced within 7 years after completion of work – s18E, Home Building Act 1989 (NSW) – date of completion of work – s3B, Home Building Act – legislative history – distinction between completion and practical completion – meaning of “completion” – interaction between s3B(2) and (3).
REFEREE – separate question – whether to adopt report – error of law in application of section 3B – failed to consider when contractor last attended site to carry out work under section 3B(3)(b) – final date on which contractor attended site was earlier than date of practical completion under section 3B(2) – the earliest date applies – proceedings out of time.
Home Building Act 1989 (NSW) ss 3B, 18E; Uniform Civil Procedure Rules 2005 NSW r 24.24(a).
Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Sustainable Buildings) Regulation 2023 (No 531) – published LW 22 September 2023
Environmental Planning and Assessment Amendment (Special Contributions Areas Infrastructure Fund) Regulation 2023 (No 530) – published LW 22 September 2023
Byron Local Environmental Plan Amendment (Housing) 2023 (No 541) – published 26 September 2023
North Sydney Local Environmental Plan 2013 (No 519) – published LW 15 September 2023
Port Stephens Local Environmental Plan (No 42) – published LW 15 September 2023
Shoalhaven Local Environmental Plan (No 50) – published LW 15 September 2023
The Hills Local Environmental Plan 2019 (No 31) – published LW 15 September 2023
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.