Gregorio v Cheadle [2018] NSWCATAP 118

Gregorio v Cheadle [2018] NSWCATAP 118

For residential building work commenced before the Home Building Amendment Act 2011 (NSW) by a holder of an owner-builder permit, the notional contract under s 18C is treated as arising when the owner-builder had done the work, and cl 109 preserved the pre-2011 s 18E limitation period of 7 years. The 2014 amendments to s 18E replaced the structural defect concept with major defect only for claims to which the 2011 amended s 18E applied, and did not clearly repeal or displace cl 109 or remove accrued rights. The Tribunal therefore erred in applying the 6 year and 2 year limitation periods to the appellants' claims.

Jurisdiction
Australia
Judgment Date
21 May 2018
Procedural Posture
Appeal Concerning a Home Building Claim for Breach of Statutory Warranties Under the Home Building Act 1989 (nsw) / Appeal From Orders of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Made on 1 November 2017
Outcome
Appeal allowed; Tribunal orders made on 1 November 2017 set aside; proceedings remitted for rehearing; second respondent ordered to pay appellants' appeal costs subject to any application for a different costs order.
Legal Topics
['limitation Period for Breach of Statutory Warranties' 'successor in Title Claim Against Owner Builder' 'retrospective Operation of Amending Legislation' 'savings and Transitional Provisions' 'home Building Act 1989 (nsw) S 18 E']
['home Building' 'statutory Warranties' 'statutory Construction' 'limitations' 'civil Procedure'] ['limitation Period for Breach of Statutory Warranties' 'successor in Title Claim Against Owner Builder' 'retrospective Operation of Amending Legislation' 'savings and Transitional Provisions' 'home Building Act 1989 (nsw) S 18 E']

Case Brief

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Procedural Posture

Appeal Concerning a Home Building Claim for Breach of Statutory Warranties Under the Home Building Act 1989 (nsw) / Appeal From Orders of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Made on 1 November 2017

Legal Issues

  1. 1 ['Whether the 2014 amendments to s 18E of the Home Building Act 1989 (NSW) retrospectively reduced the limitation period for claims concerning residential building work commenced before the Home Building Amendment Act 2011 (NSW).' 'Whether work done by an owner-builder is work in respect of a contract for residential building work entered into before commencement of the 2011 amendment within the meaning of cl 109 of Sch 4 to the Home Building Act 1989 (NSW).' 'Whether cl 121 of Sch 4 to the Home Building Act 1989 (NSW) repealed, displaced or was inconsistent with cl 109.' 'Whether the August 2015 rain event affected the applicable limitation period.']

Ratio Decidendi

For residential building work commenced before the Home Building Amendment Act 2011 (NSW) by a holder of an owner-builder permit, the notional contract under s 18C is treated as arising when the owner-builder had done the work, and cl 109 preserved the pre-2011 s 18E limitation period of 7 years. The 2014 amendments to s 18E replaced the structural defect concept with major defect only for claims to which the 2011 amended s 18E applied, and did not clearly repeal or displace cl 109 or remove accrued rights. The Tribunal therefore erred in applying the 6 year and 2 year limitation periods to the appellants' claims.

Court Disposition

Appeal allowed; Tribunal orders made on 1 November 2017 set aside; proceedings remitted for rehearing; second respondent ordered to pay appellants' appeal costs subject to any application for a different costs order.

Orders

  • ['The appeal is allowed and the orders made by the Tribunal on 1 November 2017 are set aside.' 'The proceedings are remitted for rehearing by the Tribunal to be determined in accordance with these reasons and according to law.' 'Subject to order (4), the second respondent is to pay the costs of the appellants in...