Penn & Penn v The Fair Trading Administration Corporation [2000] NSWFTT 5

Penn & Penn v The Fair Trading Administration Corporation [2000] NSWFTT 5

The Tribunal found, preferring the evidence of Professor Marosszeky and Mr Dickinson, that the defects were 'general defects' and not 'major structural defects' within the meaning of clause 31 of the BSC Regulations as they did not affect the structural integrity of the cavity brick walls. Furthermore, the Tribunal found that the delay in notification was not due to circumstances outside the Applicants' control, as a full building inspection was not obtained before purchase, which was a matter within their control. Accordingly, the Tribunal declined to exercise its discretion to extend the time for lodging the claim.

Jurisdiction
Australia
Judgment Date
02 February 2000
Procedural Posture
Appeal / Decision
Outcome
Appeal dismissed
Legal Topics
['home Building Defects' 'time Limits for Lodgement of Insurance Claims' 'definition of Major Structural Defect' 'tribunal Discretion on Extension of Time']
['insurance Law' 'building and Construction Law'] ['home Building Defects' 'time Limits for Lodgement of Insurance Claims' 'definition of Major Structural Defect' 'tribunal Discretion on Extension of Time']

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Procedural Posture

Appeal / Decision

Legal Issues

  1. 1 ["Whether the defects constitute 'major structural defects' under clause 31 of the BSC Regulations" 'Whether the Tribunal should exercise its discretion to accept the late claim under the BSC Comprehensive Insurance Scheme']

Ratio Decidendi

The Tribunal found, preferring the evidence of Professor Marosszeky and Mr Dickinson, that the defects were 'general defects' and not 'major structural defects' within the meaning of clause 31 of the BSC Regulations as they did not affect the structural integrity of the cavity brick walls. Furthermore, the Tribunal found that the delay in notification was not due to circumstances outside the Applicants' control, as a full building inspection was not obtained before purchase, which was a matter within their control. Accordingly, the Tribunal declined to exercise its discretion to extend the time for lodging the claim.

Court Disposition

Appeal dismissed

Orders

  • ['The Tribunal confirms the decision of the Fair Trading Administration Corporation to refuse the claim by Mr & Ms Penn under the Building Services Corporation Comprehensive Insurance Scheme for losses in rectifying defective building work.']