Heys v Balmain Projects Pty Ltd [2021] NSWCATAP 192

Heys v Balmain Projects Pty Ltd [2021] NSWCATAP 192

The appeal was upheld because the Tribunal erred in law in calculating the limitation period for the minor defects claim. Section 36 of the Interpretation Act 1987 (NSW) applied to s 18E of the Home Building Act 1989 (NSW), so the completion date of 2 August 2018 was excluded, the two-year period ended on Sunday 2 August 2020, and the appellant was permitted to file on Monday 3 August 2020. The Tribunal also erred in its discretionary procedural decision to reject the supplementary reports because it failed to consider the practical impossibility of obtaining an extension between service and the hearing, and failed to consider whether the respondent would suffer prejudice.

Jurisdiction
Australia
Judgment Date
29 June 2021
Procedural Posture
Appeal Concerning Home Building Act 1989 (nsw) Statutory Warranty Claims for Residential Building Defects / Appeal Panel From Civil and Administrative Tribunal, Consumer and Commercial Division Decision of 18 March 2021
Outcome
Appeal upheld; Tribunal's orders of 18 March 2021 set aside; decision on major defects and associated costs confirmed; proceedings remitted for further hearing on minor defects.
Legal Topics
['home Building Act Statutory Warranties' 'limitation Period for Minor Defects' 'reckoning of Time' 'interpretation Act 1987 (nsw) S 36' 'ncat Practice and Procedure' 'expert Evidence' 'discretionary Procedural Decision']
['building and Construction' 'administrative Law' 'civil Procedure'] ['home Building Act Statutory Warranties' 'limitation Period for Minor Defects' 'reckoning of Time' 'interpretation Act 1987 (nsw) S 36' 'ncat Practice and Procedure' 'expert Evidence' 'discretionary Procedural Decision']

Case Brief

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Procedural Posture

Appeal Concerning Home Building Act 1989 (nsw) Statutory Warranty Claims for Residential Building Defects / Appeal Panel From Civil and Administrative Tribunal, Consumer and Commercial Division Decision of 18 March 2021

Legal Issues

  1. 1 ["Whether the appellant's claim for minor defects was commenced within the two-year warranty period under s 18E of the Home Building Act 1989 (NSW)." 'Whether s 36 of the Interpretation Act 1987 (NSW) applied so that the day of completion was excluded and the filing date was extended because the last day fell on a Sunday.' 'Whether rr 4(3) and 6 of the Civil and Administrative Tribunal Rules 2014 (NSW) displaced the operation of s 36 of the Interpretation Act 1987 (NSW) for the Home Building Act claim.' "Whether the Tribunal erred in rejecting the appellant's supplementary expert reports because they were served shortly before the hearing and no extension of time had been obtained." 'Whether the respondent could raise, without a notice of appeal and for the first time on appeal, an argument that completion occurred on the date of an Interim Occupation Certificate.']

Ratio Decidendi

The appeal was upheld because the Tribunal erred in law in calculating the limitation period for the minor defects claim. Section 36 of the Interpretation Act 1987 (NSW) applied to s 18E of the Home Building Act 1989 (NSW), so the completion date of 2 August 2018 was excluded, the two-year period ended on Sunday 2 August 2020, and the appellant was permitted to file on Monday 3 August 2020. The Tribunal also erred in its discretionary procedural decision to reject the supplementary reports because it failed to consider the practical impossibility of obtaining an extension between service and the hearing, and failed to consider whether the respondent would suffer prejudice.

Court Disposition

Appeal upheld; Tribunal's orders of 18 March 2021 set aside; decision on major defects and associated costs confirmed; proceedings remitted for further hearing on minor defects.

Orders

  • ['Appeal upheld.' "The Tribunal's orders of 18 March 2021 are set aside." "The Tribunal's decision in relation to the appellant's claim for major defects, and the costs associated with that claim, are confirmed." "The proceedings are remitted to the Tribunal as originally constituted for further hearing of the...