Emrit Services Pty Limited v Lidden [2024] NSWCATAP 189

Emrit Services Pty Limited v Lidden [2024] NSWCATAP 189

The Tribunal erred in holding that the retaining wall was a 'major element' of the granny flat and consequently that the defects constituted a 'major defect' under s 18E(4) of the Home Building Act 1989 (NSW). As the defects were not a major defect, the limitation period was 2 years from completion of the work, not 6 years. The application was filed after this period, so the Tribunal lacked jurisdiction to hear the claim. The money order must be set aside.

Parties
First Appellant: Emrit Services Pty Limited; Second Appellant: Tony Khamis; Respondent: Christina Lidden
Jurisdiction
Australia
Judgment Date
03 October 2024
Procedural Posture
Internal Appeal / Hearing and Determination of Appeal
Outcome
appeal allowed
Legal Topics
Statutory Warranties, Jurisdiction, Statutory Interpretation, Limitation Periods
Building and Construction Law Administrative Law Statutory Warranties Jurisdiction Statutory Interpretation Limitation Periods

Case Brief

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Parties

Emrit Services Pty Limited

First Appellant

Tony Khamis

Second Appellant

Christina Lidden

Respondent

Procedural Posture

Internal Appeal / Hearing and Determination of Appeal

Legal Issues

  1. 1 Did the Tribunal err in finding a 'major defect' under s 18E(4) of the Home Building Act 1989 (NSW)?
  2. 2 Did the Tribunal have jurisdiction given the time limitation for bringing a claim for breach of statutory warranty?
  3. 3 Was the retaining wall a 'major element' of the granny flat within the meaning of the Act?

Ratio Decidendi

The Tribunal erred in holding that the retaining wall was a 'major element' of the granny flat and consequently that the defects constituted a 'major defect' under s 18E(4) of the Home Building Act 1989 (NSW). As the defects were not a major defect, the limitation period was 2 years from completion of the work, not 6 years. The application was filed after this period, so the Tribunal lacked jurisdiction to hear the claim. The money order must be set aside.

Court Disposition

appeal allowed

Orders

  • The appeal is allowed.
  • Order 2 dated 14 May 2024 in proceedings 2023/00442223 is set aside and the proceedings are dismissed.