Building Insurers' Guarantee Corporation v The Owners - Strata Plan 60848

The Building Insurers' Guarantee Corporation (the applicant) sought an order in the nature of certiorari to quash orders made by McLoughlin DCJ. The Owners - Strata Plan 60848 (the respondent) were the other party to the proceedings. The dispute concerned the jurisdiction of the Supreme Court to grant certiorari and the extent of the primary judge's appellate jurisdiction. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the Supreme Court's jurisdiction to grant certiorari was limited to decisions affected by jurisdictional error, by operation of s 69(5) of the *Supreme Court Act 1970* and s 65(1) of the *Consumer Trader and Tenancy Tribunal Act 2001*. Further, the Court had to consider whether the primary judge had exceeded the appellate jurisdiction conferred by s 67 of the *Consumer Trader and Tenancy Tribunal Act 2001*, and whether the primary judge had erred in their construction of s 18G of the *Home Building Act 1989*.

The Court of Appeal found that the primary judge had erred in their construction of s 18G of the *Home Building Act 1989* and had exceeded the appellate jurisdiction conferred by s 67 of the *Consumer Trader and Tenancy Tribunal Act 2001*. The Court reasoned that the Supreme Court's jurisdiction to grant certiorari was not limited to decisions affected by jurisdictional error in the manner contended by the applicant.

The Court of Appeal ordered that the orders made by McLoughlin DCJ on 3 February 2012 be quashed. The matter was remitted to the District Court to be heard and determined according to law, and the respondent was ordered to pay the applicant's costs of the proceedings in the Court of Appeal.