Jalnz Constructions Pty Ltd v Commissioner of Fair Trading

[2022] NSWCATAD 188

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jalnz Constructions Pty Ltd v Commissioner of Fair Trading [2022] NSWCATAD 188

Hearing dates:

On the papers

Date of orders:

8 June 2022

Decision date:

08 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

(2) The application for administrative review lodged on 11 March 2022 is dismissed.

Catchwords:

ADMINISTRATIVE REVIEW – strata building bond – no administratively reviewable decision - dismissal

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Strata Schemes Management Act 2015

Strata Schemes Management Regulation 2016

Cases Cited:

None cited

Category:

Principal judgment

Parties:

Jalnz Constructions Pty Ltd (Applicant)
Commissioner of Fair Trading (First Respondent)
Department of Customer Service (Second Respondent)

Representation:

Solicitors:
Applicant (Self Represented )
M Nicoletti, Managing Lawyer, Department of Customer Services (Respondents)

File Number(s):

2022/00078031

Publication restriction:

Nil

Reasons for Decision

1. On 11 March 2022 the applicant, a builder and owner of the subject development, made an application to the Tribunal seeking review of the requirement to pay a strata building bond.

2. The respondent has made an application seeking dismissal of the proceedings (the dismissal application) on the basis that there is no reviewable decision. On 10 May 2022 the Tribunal made orders directing the parties to provide material in relation to the dismissal application. The Tribunal also ordered, by consent of the parties, that a hearing be dispensed with and that the dismissal application could be determined on the papers.

3. The respondent provided written submissions in relation to the dismissal application on 24 May 2022 and the applicant provided written submissions on 1 June 2022.

4. The issue to be determined for the purposes of this summary dismissal application is whether there is any administratively reviewable decision in respect of which the Tribunal has administrative review jurisdiction. Having considered the written submissions of the parties, I am satisfied that the dismissal application can be adequately determined in the absence of the parties by considering the written material provided to the Tribunal. I am satisfied that the parties have been provided with adequate opportunity to provide submissions in relation to the summary dismissal application and that the application can be adequately determined in the absence of an oral hearing. On that basis I make an order under s 50 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) dispensing with a hearing.

5. The subject development comprises of 26 residential apartments and shops. The development is almost complete, and the applicant is in the process of obtaining an occupation certificate. The applicant submits that it should be exempted from paying the strata building bond because the development will not be subject to a strata subdivision.

6. Section 28 of the NCAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation".

7. Section of 55 the Administrative Decisions Review Act 1997 (the ADR Act) provides that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is "a decision of an administrator over which the Tribunal has administrative review jurisdiction": see s 7. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". The "enabling legislation" is legislation that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1); NCAT Act, s 4(1).

8. In the substantive application the applicant seeks review pursuant to cl 56 of the Strata Schemes Management Regulation 2016 (the Regulation). The applicant also seeks that the Tribunal make the following orders:

1. that the applicant does not have to pay the strata building bond

2. That the applicant receives a letter from the respondent confirming that it is exempt paying the bond. The applicant has also offered to enter a deed confirming that the applicant will not be selling the any part of the building.

9. The applicant submits that he was informed by his certifier that many certifiers are allowing builders to provide deeds confirming that a development is not going to be registered for strata or sold within two years from the occupation certificate to avoid paying the strata building bond.

10. The applicant also submits that it made many requests to the respondent for exemption from the payment of the bond and those requests were not answered. The applicant refers to a letter it did receive from Melanie Schwerdt from the NSW Government Department of Customer Service after the application was made to the Tribunal, which relevantly provides:

I have considered your request to provide an undertaking in lieu of a building bond; however, the Act does not empower the Commissioner to accept such an undertaking. Accordingly, the bond remains payable as required by s 207 of the Act.

11. Section 207 of the Strata Schemes Management Act 2015 (the SSMA) requires a developer of a strata scheme to pay as security, a building bond before an application is made for an occupation certificate under the Environmental Planning and Assessment Act 1979. The section sets out the amount to be paid, the purpose of the bond and proscribes a penalty for non-compliance with the section.

12. Section 213 deals with reviews of decisions under the SSMA. Sub-section 213(3) provides that the regulations may prescribe reviewable decisions for the purposes of the section. Clause 56 of the Regulation sets out the types of decisions that may be reviewed.

13. Nothing contained in cl 56 provides for a right of review in relation to s 207 of the SSMA. There is nothing in the enabling legislation (the SSMA) which would give rise to review of a decision made under s 207 of the SSMA. For that reason, I am not satisfied that any decision in relation to payment of a strata building bond is an administratively reviewable decision for the purposes of the ADR Act. Further, there is nothing that would enable the Tribunal to make an order compelling the respondent to provide a letter exempting the applicant from paying the strata building bond.

14. Section 55(1)(b) of the NCAT Act provides that:

1. The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances-

…

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

15. Given my findings at [13] above, the Tribunal has no power to make orders of the kind sought by the applicant. Accordingly, this matter does not fall within the Tribunal's jurisdiction. On that basis the application is misconceived and lacking in substance and should be dismissed pursuant to s 55(1)(b) of the NCAT Act.

Orders

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

2. The application for administrative review lodged on 11 March 2022 is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 June 2022