Sola v Yallah Project Homes Pty Ltd [2016] NSWCATAP 96

Sola v Yallah Project Homes Pty Ltd [2016] NSWCATAP 96

A dismissal of proceedings following withdrawal (under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013) does not amount to enforcement of a statutory warranty under s 18D(1B) of the Home Building Act 1989. The applicants were not developers as defined by s 3A, and their rights to enforce statutory warranties under s 18B were neither extinguished nor passed to successors by the operation of s 18C. Errors of both fact and law occurred below, requiring leave to appeal and the setting aside of the earlier orders.

Parties
Applicant: Mirko Sola; Applicant: Carissa Bouzat; Respondent: Yallah Project Homes Pty Ltd
Jurisdiction
Australia
Judgment Date
02 May 2016
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal allowed; earlier orders and declaration set aside; matter remitted for rehearing by a differently constituted Tribunal.
Legal Topics
Statutory Warranties, Appeal Panel Procedure, Dismissal of Proceedings, Definition of Developer, Enforcement of Warranty
Home Building Law Administrative Law Statutory Warranties Appeal Panel Procedure Dismissal of Proceedings Definition of Developer Enforcement of Warranty

Case Brief

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Parties

Mirko Sola

Applicant

Carissa Bouzat

Applicant

Yallah Project Homes Pty Ltd

Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether a dismissal following withdrawal amounts to enforcement of a statutory warranty under s 18D(1B) of the Home Building Act 1989 (NSW)
  2. 2 Whether the applicants were 'developers' under s 3A of the Home Building Act 1989 (NSW)
  3. 3 Whether rights to enforce statutory warranties were extinguished upon sale of the property

Ratio Decidendi

A dismissal of proceedings following withdrawal (under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013) does not amount to enforcement of a statutory warranty under s 18D(1B) of the Home Building Act 1989. The applicants were not developers as defined by s 3A, and their rights to enforce statutory warranties under s 18B were neither extinguished nor passed to successors by the operation of s 18C. Errors of both fact and law occurred below, requiring leave to appeal and the setting aside of the earlier orders.

Court Disposition

Appeal allowed; earlier orders and declaration set aside; matter remitted for rehearing by a differently constituted Tribunal.

Orders

  • Appeal allowed.
  • Set aside the 'declaration' and orders made on 28 April 2015.