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Dyldam Developments Pty Ltd v The Owners - Strata Plan 85305

Dyldam Developments Pty Ltd v The Owners - Strata Plan 85305

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Case Copied 15 December 2020 54 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327
Hearing dates: 2 June 2020
Decision date: 15 December 2020
Before: White JA at [1]
Emmett AJA at [96]
Simpson AJA at [111]
Decision:
(1)   Grant the applicant leave to appeal.
(2)   Appeal dismissed.
(3)   Appellant pay the respondent’s costs of the appeal and application for leave to appeal.

Catchwords:
ADMINISTRATIVE LAW – Jurisdiction – Civil and Administrative Tribunal – whether the Tribunal has jurisdiction to review an occupation certificate whilst exercising its jurisdiction under the Home Building Act 1989 (NSW) – whether review of the occupation certificate collateral to the proceedings – capacity of the Tribunal to engage in collateral review of administrative action – where statutory scheme provides Land and Environment Court jurisdiction to remedy or restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW)
BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – where running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act invalid

Legislation Cited:
Building Professionals Act 2005 (NSW)
Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38
Civil and Administrative Tribunal Act 2013 (NSW), s 83
Environmental Planning and Assessment Act 1979 (NSW), Pt 4A, ss 123, 124, 125
Environmental Planning and Assessment Amendment Act 2017 (NSW)
Home Building Act 1989 (NSW), s 3C, 18E, 48, 48K, 48L
Home Building Amendment Act 2014 (NSW), s 48
Land and Environment Court Act 1979 (NSW), ss 17, 20, 71
Residential Tenancies Act 1997 (Vic)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Environmental Planning and Assessment Regulation 2000 (NSW), regs 145, 155

Cases Cited:
Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28
Bathurst City Council v Saben (1985) 2 NSWLR 704 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40
Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206
Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266
Dyldam Developments Pty Ltd v The Owners – Strata Plan No. 85305 [2019] NSWCATAP 229
Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588
Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Wilson v Chan &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 327
Decision Date: 15 December 2020

CaseChat Overview and Summary

Dyldam Developments Pty Ltd (the applicant) sought leave to appeal a decision of the primary judge concerning the validity of an occupation certificate issued under the *Environmental Planning and Assessment Act 1979* (NSW). The Owners - Strata Plan 85305 (the respondent) argued that the occupation certificate was invalid, which had implications for the running of the limitation period for claims under the *Home Building Act 1989* (NSW). The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Civil and Administrative Tribunal (NCAT), when exercising its jurisdiction under the *Home Building Act 1989*, possessed the power to review the validity of an occupation certificate, and whether such a review would be considered collateral to the primary proceedings. The Court also considered whether an occupation certificate issued in contravention of section 109H(2) of the *Environmental Planning and Assessment Act 1979* was invalid, and whether a document purporting to be an interim occupation certificate authorised the use and occupation of the whole of the building for the purposes of the *Home Building Act 1989*.

The Court of Appeal held that NCAT did not have jurisdiction to undertake a collateral review of the validity of an occupation certificate. The Court reasoned that the statutory scheme under the *Environmental Planning and Assessment Act 1979* provided for the Land and Environment Court to remedy or restrain breaches of that Act, including the improper issuance of certificates. Therefore, NCAT’s jurisdiction was confined to the matters expressly conferred upon it by the *Home Building Act 1989*, and it could not embark on an inquiry into the validity of an administrative decision made under a different legislative framework. The Court found that the occupation certificate, even if issued in contravention of section 109H(2), was not a nullity and remained valid until set aside by a court with the appropriate jurisdiction.

The Court of Appeal granted the applicant leave to appeal but ultimately dismissed the appeal, ordering the applicant to pay the respondent’s costs of the appeal and the application for leave to appeal.

Orders

Orders of the court

(1) Grant the applicant leave to appeal.

(2) Appeal dismissed.

(3) Appellant pay the respondent’s costs of the appeal and application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327
Hearing dates:	2 June 2020
Decision date:	15 December 2020
Before:	White JA at [1] Emmett AJA at [96] Simpson AJA at [111]
Decision:	(1) Grant the applicant leave to appeal. (2) Appeal dismissed. (3) Appellant pay the respondent’s costs of the appeal and application for leave to appeal.
Catchwords:	ADMINISTRATIVE LAW – Jurisdiction – Civil and Administrative Tribunal – whether the Tribunal has jurisdiction to review an occupation certificate whilst exercising its jurisdiction under the Home Building Act 1989 (NSW) – whether review of the occupation certificate collateral to the proceedings – capacity of the Tribunal to engage in collateral review of administrative action – where statutory scheme provides Land and Environment Court jurisdiction to remedy or restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW) BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – where running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act invalid
Legislation Cited:	Building Professionals Act 2005 (NSW) Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38 Civil and Administrative Tribunal Act 2013 (NSW), s 83 Environmental Planning and Assessment Act 1979 (NSW), Pt 4A, ss 123, 124, 125 Environmental Planning and Assessment Amendment Act 2017 (NSW) Home Building Act 1989 (NSW), s 3C, 18E, 48, 48K, 48L Home Building Amendment Act 2014 (NSW), s 48 Land and Environment Court Act 1979 (NSW), ss 17, 20, 71 Residential Tenancies Act 1997 (Vic) Victorian Civil and Administrative Tribunal Act 1998 (Vic) Environmental Planning and Assessment Regulation 2000 (NSW), regs 145, 155
Cases Cited:	Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Bathurst City Council v Saben (1985) 2 NSWLR 704 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40 Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206 Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 Dyldam Developments Pty Ltd v The Owners – Strata Plan No. 85305 [2019] NSWCATAP 229 Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Wilson v Chan &…