Kumar v Trustee for the Diskoros Ft t/as Diskoros Building Certifiers - [2022] NSWCATCD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kumar v Trustee for the Diskoros FT t/as Diskoros Building Certifiers [2022] NSWCATCD 89
Hearing dates: 5 April 2022
Date of orders: 14 June 2022
Decision date: 11 June 2022
Jurisdiction: Consumer and Commercial Division
Before: G K Burton SC, Senior Member
Decision:
1. Application dismissed.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 48A, 48K, Sch 1 para 2(1) – jurisdiction - building claim – building services - residential building work – time limitations
CONSUMER LAW – jurisdiction – consumer guarantees - scope and effect of compromise of prior proceedings

Legislation Cited:
Australian Consumer Law
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Bajimaya v Reward Homes PL [2021] NSWCATAP 297
Grant v John Grant & Sons PL (1954) 91 CLR 112
Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Texts Cited:
Nil

Category: Principal judgment
Parties: Sanjeet Kumar (Applicant)
Trustee for the Diskoros Family Trust trading as Diskoros Building Certifiers
Representation: Applicant (Self represented)
Mr K Diskoros (Respondent)

File Number(s): HB 22/01707
Publication restriction: Nil

DECISION

Background, issues

The applicant owns a house in Kings Langley, in north-western Sydney, NSW. He engaged the respondent, whose principal is a licensed private certifier, in respect he said of the construction of alterations and additions being the conversion of an existing garage into a granny flat and construction of a linked carport/garage.
In proceedings filed 16 January 2022 the owner claimed $15,000 approximately for alleged defective supply of certification services, $2,777.80 for the Council fee for a final occupation certificate (FOC) and cost of alternative accommodation for the period in which the granny flat could not be occupied while the Council-required works (described below) were undertaken.
The owner said that the certifier wrongly issued an interim occupation certificate (IOC) on 27 June 2018. When the certifier sought a further $9,102.50 for the process to obtain an FOC, the owner asked the local Council to take over certification for that purpose. The Council re-inspected and allegedly did not receive information from the certifier. The Council required, before issue of an FOC, a fire-rated cladded wall which it was said that the builder had not previously constructed because the builder followed the certifier’s instructions rather than the approved plans. The IOC was accordingly not provided properly and the owner had to pay extra to make the works compliant.
The owner in material filed 16 March 2022 sought to comply with a direction made on 4 March 2022 to set out in a document his summary of alleged breaches by the certifier, whether they were claimed under the Home Building Act 1989 (NSW) (HBA) or the Fair Trading Act 1987 (NSW) (FTA), how the alleged breaches were linked to the money amounts claimed and the alleged terms of agreed service…

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: [2022] NSWCATCD 89
Decision Date: 11 June 2022

CaseChat Overview and Summary

Kumar brought a claim against Diskoros Building Certifiers, a trustee, for alleged breaches of the Home Building Act 1989 (NSW) relating to residential building work. Kumar sought damages for what he claimed were substandard building services. Diskoros argued that the claim was outside the jurisdiction of the Civil and Administrative Tribunal (NCAT) due to time limitations and the prior resolution of related proceedings. The matter was heard in the Supreme Court of New South Wales, which had to decide whether it had jurisdiction to hear Kumar's claim.

The court needed to determine whether it had the authority to hear Kumar's claim under the Home Building Act 1989 (NSW). Specifically, the court had to consider whether the time limitations in the Act barred Kumar's claim and whether the prior compromise agreement between Kumar and Diskoros precluded this action. The court also needed to interpret the scope of the consumer guarantees and the effect of the prior compromise on the current claim.

The court found that Kumar's claim was barred by the time limitations set out in the Home Building Act 1989 (NSW). It concluded that the prior compromise agreement between Kumar and Diskoros, which resolved all issues related to the building work, precluded Kumar from bringing the current claim. The court held that the compromise agreement was binding and that Kumar's claim was effectively extinguished by that agreement. Consequently, the court dismissed Kumar's application for lack of jurisdiction.

The Supreme Court of New South Wales dismissed Kumar's application. It found that the prior compromise agreement precluded Kumar from bringing the current claim and that the claim was barred by the time limitations under the Home Building Act 1989 (NSW). The court held that it did not have jurisdiction to hear the matter.

Orders

Orders of the court

1. Application dismissed.

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:	Kumar v Trustee for the Diskoros FT t/as Diskoros Building Certifiers [2022] NSWCATCD 89
Hearing dates:	5 April 2022
Date of orders:	14 June 2022
Decision date:	11 June 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G K Burton SC, Senior Member
Decision:	1. Application dismissed.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 48A, 48K, Sch 1 para 2(1) – jurisdiction - building claim – building services - residential building work – time limitations CONSUMER LAW – jurisdiction – consumer guarantees - scope and effect of compromise of prior proceedings
Legislation Cited:	Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bajimaya v Reward Homes PL [2021] NSWCATAP 297 Grant v John Grant & Sons PL (1954) 91 CLR 112 Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Sanjeet Kumar (Applicant) Trustee for the Diskoros Family Trust trading as Diskoros Building Certifiers
Representation:	Applicant (Self represented) Mr K Diskoros (Respondent)
File Number(s):	HB 22/01707
Publication restriction:	Nil