The Owners – Strata Plan No 85305 v Dyldam Developments Pty Ltd [2019] NSWCATCD 73

The Owners – Strata Plan No 85305 v Dyldam Developments Pty Ltd [2019] NSWCATCD 73

The first and second interim occupation certificates should not have been issued because development consent preconditions required before issue had not been complied with, contrary to s109H(2) of the Environmental Planning and Assessment Act 1979. The reference to an occupation certificate in s3C(2) of the Home Building Act 1989 applies only to an occupation certificate valid under the EPA Act. Accordingly, completion occurred on 12 October 2011 when the third occupation certificate issued, and proceedings commenced on 4 October 2018 were within the 7 year period in s18E(1).

Jurisdiction
Australia
Judgment Date
05 March 2019
Procedural Posture
Home Building Statutory Warranty Proceedings / Preliminary Hearing on Jurisdiction/time to Commence Proceedings
Outcome
Dyldam Developments Pty Ltd's application that the proceedings were brought out of time was dismissed.
Legal Topics
['time to Commence Proceedings' 'statutory Warranties' 'occupation Certificates' 'validity of Interim Occupation Certificate']
['home Building' 'planning and Development' 'strata'] ['time to Commence Proceedings' 'statutory Warranties' 'occupation Certificates' 'validity of Interim Occupation Certificate']

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Procedural Posture

Home Building Statutory Warranty Proceedings / Preliminary Hearing on Jurisdiction/time to Commence Proceedings

Legal Issues

  1. 1 ['Whether the proceedings were commenced outside the time stipulated in s18E of the Home Building Act 1989.' 'Whether the first or second interim occupation certificate authorised occupation and use of the whole building for the purposes of s3C(2) of the Home Building Act 1989 despite unmet development consent preconditions.' 'Whether the building work was completed on 5 September 2011, 9 September 2011, or 12 October 2011 for limitation purposes.']

Ratio Decidendi

The first and second interim occupation certificates should not have been issued because development consent preconditions required before issue had not been complied with, contrary to s109H(2) of the Environmental Planning and Assessment Act 1979. The reference to an occupation certificate in s3C(2) of the Home Building Act 1989 applies only to an occupation certificate valid under the EPA Act. Accordingly, completion occurred on 12 October 2011 when the third occupation certificate issued, and proceedings commenced on 4 October 2018 were within the 7 year period in s18E(1).

Court Disposition

Dyldam Developments Pty Ltd's application that the proceedings were brought out of time was dismissed.

Orders

  • ["Dyldam Developments Pty Ltd's application for an order that the time limit for The Owners – Strata Plan No 85305 to have commenced these proceedings expired on 5 September 2018 with the result that the proceedings have been brought out of time is dismissed." 'Any costs application associated with this application...