Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273

Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273

The Tribunal erred by determining the three-year limit under s 48K(3) of the Home Building Act 1989 (NSW) runs from the date the Occupation Certificate was issued, and failed to give reasons referencing evidence supporting this date. The correct approach is to treat the last date building goods and services were supplied as a question of fact. As evidence indicated supply after the Occupation Certificate, the application was likely brought within time. The Tribunal's error constituted a question of law.

Parties
Appellant: J Diao; Respondent: Rawson Homes Pty Ltd
Jurisdiction
Australia
Judgment Date
13 September 2021
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Appeal allowed; matter remitted for rehearing; costs at own risk subject to further application
Legal Topics
Time Limits for Building Claims, Breach of Contract, Jurisdiction of Tribunal, Statutory Interpretation, Home Building Act
Building and Construction Law Contract Law Time Limits for Building Claims Breach of Contract Jurisdiction of Tribunal Statutory Interpretation Home Building Act

Case Brief

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Parties

J Diao

Appellant

Rawson Homes Pty Ltd

Respondent

Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in calculating the three-year time limit under s 48K(3) of the Home Building Act 1989 (NSW) by reference to the date of the Occupation Certificate rather than the last date building goods and services were supplied
  2. 2 Whether the Tribunal provided adequate reasons for its finding regarding the date relevant for time calculation
  3. 3 Whether there was an error of law by failing to apply the correct legislative provision

Ratio Decidendi

The Tribunal erred by determining the three-year limit under s 48K(3) of the Home Building Act 1989 (NSW) runs from the date the Occupation Certificate was issued, and failed to give reasons referencing evidence supporting this date. The correct approach is to treat the last date building goods and services were supplied as a question of fact. As evidence indicated supply after the Occupation Certificate, the application was likely brought within time. The Tribunal's error constituted a question of law.

Court Disposition

Appeal allowed; matter remitted for rehearing; costs at own risk subject to further application

Orders

  • Appeal allowed.
  • The proceedings are remitted to a differently constituted Tribunal for hearing and determination of the appellant's application in accordance with the evidence previously adduced to the Tribunal and such further evidence as the Tribunal may allow, including the evidence provided on this appeal.