Kakoz v G Storm Group Pty Ltd [2022] NSWCATCD 119

Kakoz v G Storm Group Pty Ltd [2022] NSWCATCD 119

The contract did not define completion. On the applicant's own evidence, the premises were reasonably fit for occupation and had been occupied since April 2015, so practical completion occurred by then despite later defect-related attendances. The application was filed on 29 March 2022, more than 6 years after practical completion. By operation of ss 3B, 18E and 48K of the Home Building Act 1989 (NSW), the proceedings were out of time and the Tribunal had no jurisdiction, and s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) could not be used to extend time where jurisdiction did not exist.

Jurisdiction
Australia
Judgment Date
01 September 2022
Procedural Posture
Residential Building Claim / Final Hearing; Principal Judgment on Jurisdiction
Outcome
The application is dismissed as the Tribunal has no jurisdiction.
Legal Topics
['residential Building Work' 'statutory Warranties' 'practical Completion' 'ncat Jurisdiction' 'limitation Periods']
['building and Construction' 'consumer and Commercial' 'administrative Law'] ['residential Building Work' 'statutory Warranties' 'practical Completion' 'ncat Jurisdiction' 'limitation Periods']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Residential Building Claim / Final Hearing; Principal Judgment on Jurisdiction

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to consider the Homeowner's claim." 'Whether the contract was still on foot or had been repudiated or terminated and, if so, by whom.' 'If the contract had been repudiated or terminated, whether the Homeowner was restricted to a rectification order or entitled to damages.']

Ratio Decidendi

The contract did not define completion. On the applicant's own evidence, the premises were reasonably fit for occupation and had been occupied since April 2015, so practical completion occurred by then despite later defect-related attendances. The application was filed on 29 March 2022, more than 6 years after practical completion. By operation of ss 3B, 18E and 48K of the Home Building Act 1989 (NSW), the proceedings were out of time and the Tribunal had no jurisdiction, and s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) could not be used to extend time where jurisdiction did not exist.

Court Disposition

The application is dismissed as the Tribunal has no jurisdiction.

Orders

  • ['The application is dismissed for want of jurisdiction.']