Ibrahim v Paragon Constructions (NSW) Pty Ltd; Paragon Constructions (NSW) Pty Ltd v Ibrahim [2016] NSWCATCD 66

Ibrahim v Paragon Constructions (NSW) Pty Ltd; Paragon Constructions (NSW) Pty Ltd v Ibrahim [2016] NSWCATCD 66

Clause 109 was not repealed or amended by the 2014 amendments and preserves the seven year warranty period for residential building work under contracts entered into before 1 February 2012. The 2014 amendments changed the terminology from structural defect to major defect and operated retrospectively only from the date of the 2014 amendments to the date of the 2011 amendments, not so as to remove the seven year period for pre-1 February 2012 contracts. The owner's claim, filed within seven years of completion in September 2010, was therefore within jurisdiction. The builder's quantum meruit claim was a building claim arising from supply of building goods or services, not an enforceable...

Jurisdiction
Australia
Judgment Date
01 July 2016
Procedural Posture
Home Building Claims / Preliminary Jurisdictional Ruling
Outcome
The Tribunal found that it had jurisdiction to hear and determine both the home owner's application and the builder's application.
Legal Topics
['statutory Warranties' 'section 18 E Warranty Periods' 'retrospectivity of Amendments' 'major Defects and Other Defects' 'quantum Meruit' 'building Claim Jurisdiction']
['home Building' 'consumer and Commercial' 'administrative Tribunal Jurisdiction' 'statutory Interpretation' 'limitation of Actions'] ['statutory Warranties' 'section 18 E Warranty Periods' 'retrospectivity of Amendments' 'major Defects and Other Defects' 'quantum Meruit' 'building Claim Jurisdiction']

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Procedural Posture

Home Building Claims / Preliminary Jurisdictional Ruling

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to hear the home owner's statutory warranty claim for residential building work completed in September 2010." 'Whether the 2014 amendments to s 18E of the Home Building Act 1989 retrospectively displaced the seven year warranty period preserved for contracts entered into before 1 February 2012.' "Whether the Tribunal had jurisdiction to hear the builder's quantum meruit claim for unpaid invoices issued between 2 July 2010 and 21 September 2010."]

Ratio Decidendi

Clause 109 was not repealed or amended by the 2014 amendments and preserves the seven year warranty period for residential building work under contracts entered into before 1 February 2012. The 2014 amendments changed the terminology from structural defect to major defect and operated retrospectively only from the date of the 2014 amendments to the date of the 2011 amendments, not so as to remove the seven year period for pre-1 February 2012 contracts. The owner's claim, filed within seven years of completion in September 2010, was therefore within jurisdiction. The builder's quantum meruit claim was a building claim arising from supply of building goods or services, not an enforceable...

Court Disposition

The Tribunal found that it had jurisdiction to hear and determine both the home owner's application and the builder's application.

Orders

  • ["The Tribunal has jurisdiction to hear and determine the home owner's application HB 15/52616." 'The Tribunal has jurisdiction to hear and determine the builders application HB 15/67446.']