Bailey & Anor v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293

Bailey & Anor v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293

The Tribunal was correct to find, on the evidence, that some residential building work remained incomplete within seven years before the Owners Corporation's claim was lodged, so the Tribunal retained jurisdiction under s 48K(7) of the Home Building Act 1989. Although the District Court failed to address all arguments, the appeal was correctly dismissed as the applicants did not discharge their onus of showing that the Tribunal lacked jurisdiction.

Parties
First Applicant: Brian Stephen Bailey; Second Applicant: BS & JH Bailey Pty Ltd; First Respondent: Owners Corporation of Strata Plan 62666; Second Respondent: Peter Wayne Dunn and Janelle Ann Warnock; Third Respondent: Jeffery William Todd and Lynette Joy Eastburn; Fourth Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
15 September 2011
Procedural Posture
Application for Order in the Nature of Certiorari / Court of Appeal (nsw) Judgment
Outcome
application dismissed
Legal Topics
Defective Work, Limitation Period, Jurisdiction of Consumer, Trader and Tenancy Tribunal, Statutory Warranties, Residential Building Work, Judicial Review, Certiorari, Home Building Act 1989
Building and Construction Law Administrative Law Statutory Interpretation Defective Work Limitation Period Jurisdiction of Consumer, Trader and Tenancy Tribunal Statutory Warranties Residential Building Work +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 19 Party arguments 2
Sign in to unlock

Parties

Brian Stephen Bailey

First Applicant

BS & JH Bailey Pty Ltd

Second Applicant

Owners Corporation of Strata Plan 62666

First Respondent

Peter Wayne Dunn and Janelle Ann Warnock

Second Respondent

Jeffery William Todd and Lynette Joy Eastburn

Third Respondent

District Court of New South Wales

Fourth Respondent

Procedural Posture

Application for Order in the Nature of Certiorari / Court of Appeal (nsw) Judgment

Legal Issues

  1. 1 Whether the Consumer, Trader and Tenancy Tribunal had jurisdiction to hear the Owners Corporation's claim for alleged defective building work under s 48K(7) of the Home Building Act 1989 given the timing of completion of the relevant work and lodgment of the claim
  2. 2 Whether landscaping work was 'residential building work' for the purpose of determining the limitation period
  3. 3 Whether the District Court erred by failing to address arguments about jurisdiction under s 48K(7) HB Act

Ratio Decidendi

The Tribunal was correct to find, on the evidence, that some residential building work remained incomplete within seven years before the Owners Corporation's claim was lodged, so the Tribunal retained jurisdiction under s 48K(7) of the Home Building Act 1989. Although the District Court failed to address all arguments, the appeal was correctly dismissed as the applicants did not discharge their onus of showing that the Tribunal lacked jurisdiction.

Court Disposition

application dismissed

Orders

  • Application dismissed.
  • The Applicants to pay the costs of the First, Second and Third Respondents.