S Turnell and W Turnell v Atlantic Construction Pty Ltd [2014] NSWCATCD 89

S Turnell and W Turnell v Atlantic Construction Pty Ltd [2014] NSWCATCD 89

The application for breach of statutory warranty is out of time as it was lodged more than 7 years from the practical completion of the works, defined by possession and ability to use the property. Leave is granted to amend to include a timely claim under s 48K(3) for rectification work.

Parties
Applicants: S Turnell and W Turnell; Respondent: Atlantic Construction Pty Ltd
Jurisdiction
Australia
Judgment Date
29 May 2014
Procedural Posture
Building Claim / Interlocutory Decision Addressing Jurisdiction and Amendments
Outcome
Claim for breach of statutory warranty dismissed as out of time; leave granted to amend to raise s 48K(3) claim; matter listed for directions hearing.
Legal Topics
Jurisdiction, Statutory Warranties, Time Limitations, Practical Completion
Building and Construction Administrative Law Jurisdiction Statutory Warranties Time Limitations Practical Completion

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Parties

S Turnell and W Turnell

Applicants

Atlantic Construction Pty Ltd

Respondent

Procedural Posture

Building Claim / Interlocutory Decision Addressing Jurisdiction and Amendments

Legal Issues

  1. 1 Whether the application was lodged within the statutory time limit for breach of statutory warranties under the Home Building Act 1989
  2. 2 Whether the Tribunal has jurisdiction to determine the claim pursuant to s 48K(7) and s 48K(3) of the Home Building Act 1989
  3. 3 What is the date of completion or practical completion under the contract and statute

Ratio Decidendi

The application for breach of statutory warranty is out of time as it was lodged more than 7 years from the practical completion of the works, defined by possession and ability to use the property. Leave is granted to amend to include a timely claim under s 48K(3) for rectification work.

Court Disposition

Claim for breach of statutory warranty dismissed as out of time; leave granted to amend to raise s 48K(3) claim; matter listed for directions hearing.

Orders

  • The application was not lodged within the time period stipulated pursuant to s 48K(7) of the Home Building Act 1989, and accordingly that part of the claim is dismissed.
  • The applicant is granted leave to amend their application to include an application pursuant to s 48K(3) of the Home Building Act 1989.