Fair Trading Administration Corporation v The Owners Strata Plan 58185 & Anor [2010] NSWSC 96

Fair Trading Administration Corporation v The Owners Strata Plan 58185 & Anor [2010] NSWSC 96

The Tribunal acted beyond power because it effectively treated the first defendant's 1999 notification of potential defects as a claim under the Scheme. On the proper construction of Form 4, notification and claim are distinct steps, and a claim was necessary before liability could be determined. The completed insurance claim was not lodged until 7 August 2008, more than 10 years after the 30 September 1996 commencement of the building work, and the Scheme barred the claim and any liability of the plaintiff.

Jurisdiction
Australia
Judgment Date
08 February 2010
Procedural Posture
Summons Seeking Prerogative Relief Restraining the Consumer Trader and Tenancy Tribunal From Proceeding With an Application / Principal Judgment
Outcome
Plaintiff granted declaratory and injunctive relief; Tribunal decision declared beyond power; claim barred; costs awarded to the plaintiff.
Legal Topics
['jurisdictional Error' 'prerogative Relief' 'statutory Insurance Scheme' 'home Warranty Insurance' 'time Limits for Claims' 'consumer Trader and Tenancy Tribunal Jurisdiction']
['administrative Law' 'insurance' 'home Building'] ['jurisdictional Error' 'prerogative Relief' 'statutory Insurance Scheme' 'home Warranty Insurance' 'time Limits for Claims' 'consumer Trader and Tenancy Tribunal Jurisdiction']

Case Brief

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Procedural Posture

Summons Seeking Prerogative Relief Restraining the Consumer Trader and Tenancy Tribunal From Proceeding With an Application / Principal Judgment

Legal Issues

  1. 1 ["Whether the Supreme Court could grant relief under s 65 of the Consumer Trader and Tenancy Tribunal Act 2001 in respect of the Tribunal's decision." 'Whether the Tribunal misconstrued the Building Services Corporation Comprehensive Insurance Scheme by treating notification of defects as a claim.' "Whether the first defendant's claim under the Scheme was barred because it was made more than 10 years after commencement of the residential building work." 'Whether the plaintiff was liable to the first defendant under the Scheme.']

Ratio Decidendi

The Tribunal acted beyond power because it effectively treated the first defendant's 1999 notification of potential defects as a claim under the Scheme. On the proper construction of Form 4, notification and claim are distinct steps, and a claim was necessary before liability could be determined. The completed insurance claim was not lodged until 7 August 2008, more than 10 years after the 30 September 1996 commencement of the building work, and the Scheme barred the claim and any liability of the plaintiff.

Court Disposition

Plaintiff granted declaratory and injunctive relief; Tribunal decision declared beyond power; claim barred; costs awarded to the plaintiff.

Orders

  • ['The orders and decision of the second defendant on 11 June 2009 in matter no. HB 08/49526 were beyond power and are null and void.' 'The claim made by the first defendant on the plaintiff on 7 August 2008 was barred by the operation of the Comprehensive Scheme contained in Form 4 of Schedule 1 of the Building...