Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327

Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327

The Tribunal’s jurisdiction under s 48K Home Building Act 1989 (NSW) required it to determine whether the occupation certificates relied on by Dyldam actually authorised occupation and use of the whole building; as this was central to jurisdiction, the Tribunal was both authorised and obliged to decide the question. Certificates described as 'interim' but issued for a completed building were not interim occupation certificates within s 109H(1)(a) and did not trigger the limitation period; the claim was therefore within time.

Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Application for Leave to Appeal and Appeal / Court of Appeal Judgment (post Leave, Substantive Appeal)
Outcome
Leave to appeal granted; appeal dismissed; costs to respondent.
Legal Topics
['jurisdiction of Tribunal' 'home Building Act Limitation Period' 'validity of Occupation Certificates' 'collateral Review of Administrative Action']
['administrative Law' 'building and Construction Law' 'statutory Interpretation'] ['jurisdiction of Tribunal' 'home Building Act Limitation Period' 'validity of Occupation Certificates' 'collateral Review of Administrative Action']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal / Court of Appeal Judgment (post Leave, Substantive Appeal)

Legal Issues

  1. 1 ['Whether the Tribunal has jurisdiction to review an occupation certificate when exercising jurisdiction under the Home Building Act 1989 (NSW)' 'Whether review of the occupation certificate was collateral to the proceedings' 'Whether interim occupation certificates issued in contravention of s 109H(2) EPA Act were valid and could trigger the limitation period in s 18E Home Building Act']

Ratio Decidendi

The Tribunal’s jurisdiction under s 48K Home Building Act 1989 (NSW) required it to determine whether the occupation certificates relied on by Dyldam actually authorised occupation and use of the whole building; as this was central to jurisdiction, the Tribunal was both authorised and obliged to decide the question. Certificates described as 'interim' but issued for a completed building were not interim occupation certificates within s 109H(1)(a) and did not trigger the limitation period; the claim was therefore within time.

Court Disposition

Leave to appeal granted; appeal dismissed; costs to respondent.

Orders

  • ['Grant the applicant leave to appeal.' 'Appeal dismissed.' "Appellant pay the respondent's costs of the appeal and application for leave to appeal."]