The Owners-Strata Plan No.79707 v Trilogy Capital Services Pty Ltd [2015] NSWCATAP 171

The Owners-Strata Plan No.79707 v Trilogy Capital Services Pty Ltd [2015] NSWCATAP 171

The respondent was not a developer within section 3A because, although it previously held a 25% tenancy in common interest, it was never proposed that it would own four or more of the strata home units after registration of the strata plan. On registration, the common property vested in the appellant from TCD, which owned Lot 2 immediately before registration, so the appellant was not the immediate successor in title to the respondent. Because the respondent was not a developer, the appellant could not rely on section 18D to claim statutory warranty rights against the respondent. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
17 August 2015
Procedural Posture
Appeal Concerning Preliminary Issues in Home Building Statutory Warranty Proceedings / Appeal Panel From Civil and Administrative Tribunal, Consumer and Commercial Division Decision [2014] NSWCATCD205
Outcome
Appeal dismissed.
Legal Topics
['meaning of Developer Under Home Building Act 1989' 'statutory Warranties' 'immediate Successor in Title' 'vesting of Common Property on Registration of Strata Plan' 'costs in NCAT Proceedings']
['home Building' 'strata Title' 'civil Procedure' 'costs'] ['meaning of Developer Under Home Building Act 1989' 'statutory Warranties' 'immediate Successor in Title' 'vesting of Common Property on Registration of Strata Plan' 'costs in NCAT Proceedings']

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Procedural Posture

Appeal Concerning Preliminary Issues in Home Building Statutory Warranty Proceedings / Appeal Panel From Civil and Administrative Tribunal, Consumer and Commercial Division Decision [2014] NSWCATCD205

Legal Issues

  1. 1 ['Whether the respondent was a developer in relation to the residential building work to the common property of Strata Plan No. 79707.' 'Whether the appellant could be an immediate successor in title to the respondent for the purpose of section 18C of the Home Building Act 1989.' 'Whether the appellant was entitled to claim breach of the statutory warranties against the respondent as successor in title pursuant to section 18D of the Home Building Act 1989.' 'Whether special circumstances warranted an award of costs.']

Ratio Decidendi

The respondent was not a developer within section 3A because, although it previously held a 25% tenancy in common interest, it was never proposed that it would own four or more of the strata home units after registration of the strata plan. On registration, the common property vested in the appellant from TCD, which owned Lot 2 immediately before registration, so the appellant was not the immediate successor in title to the respondent. Because the respondent was not a developer, the appellant could not rely on section 18D to claim statutory warranty rights against the respondent. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ["Question 1: whether the respondent is a 'developer' in relation to the residential building work to the common property of Strata Plan No. 79707. Answer 1: No." 'Question 2: whether or not in circumstances where the appellant became the owners corporation of the Strata Plan SP 979707 containing 17 residential...