Building Insurers' Guarantee Corporation v The Owners - Strata Plan 60848 [2012] NSWCA 375

Building Insurers' Guarantee Corporation v The Owners - Strata Plan 60848 [2012] NSWCA 375

The District Court erred in law by relying on s 18G of the Home Building Act 1989 (NSW) to impose liability for waterproofing work that the Tribunal had found was not within the builder's contract. The question concerning s 18G was not a question with respect to a matter of law decided by the Tribunal or forming part of the appeal under s 67 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW). In any event, the absence of a contractual requirement to perform waterproofing work was not a provision of an agreement purporting to restrict or remove statutory warranty rights, and s 18G did not expand the scope of work covered by s 18B(e). Section 65(1) of the Consumer Trader and Tenancy...

Jurisdiction
Australia
Judgment Date
16 November 2012
Procedural Posture
Application for Relief in the Nature of Certiorari / Court of Appeal Review of District Court Orders Made on an Appeal From the Consumer Trader and Tenancy Tribunal
Outcome
Application granted; District Court orders quashed and matter remitted to the District Court.
Legal Topics
['certiorari' 'jurisdictional Error' 'appeal on a Question of Law From the Consumer Trader and Tenancy Tribunal' 'home Building Statutory Warranties' 'home Warranty Insurance' 'privative Clauses']
['administrative Law' 'building and Construction' 'insurance'] ['certiorari' 'jurisdictional Error' 'appeal on a Question of Law From the Consumer Trader and Tenancy Tribunal' 'home Building Statutory Warranties' 'home Warranty Insurance' 'privative Clauses']

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Procedural Posture

Application for Relief in the Nature of Certiorari / Court of Appeal Review of District Court Orders Made on an Appeal From the Consumer Trader and Tenancy Tribunal

Legal Issues

  1. 1 ["Whether s 65(1) of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW), read with s 69(5) of the Supreme Court Act 1970 (NSW), limited the Supreme Court's jurisdiction to grant certiorari to cases of jurisdictional error." 'Whether the District Court exceeded the appellate jurisdiction conferred by s 67 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) by deciding a question concerning s 18G of the Home Building Act 1989 (NSW) that had not been decided by the Tribunal.' "Whether s 18G of the Home Building Act 1989 (NSW) operated to treat waterproofing work not within the scope of the builder's contract as work required for the purposes of the statutory warranty in s 18B(e)."]

Ratio Decidendi

The District Court erred in law by relying on s 18G of the Home Building Act 1989 (NSW) to impose liability for waterproofing work that the Tribunal had found was not within the builder's contract. The question concerning s 18G was not a question with respect to a matter of law decided by the Tribunal or forming part of the appeal under s 67 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW). In any event, the absence of a contractual requirement to perform waterproofing work was not a provision of an agreement purporting to restrict or remove statutory warranty rights, and s 18G did not expand the scope of work covered by s 18B(e). Section 65(1) of the Consumer Trader and Tenancy...

Court Disposition

Application granted; District Court orders quashed and matter remitted to the District Court.

Orders

  • ['An order in the nature of certiorari quashing the orders made by McLoughlin DCJ on 3 February 2012.' 'Remit the matter to the District Court to hear and determine according to law.' "The respondent is to pay the applicant's costs of the proceedings in this Court."]