Lavery v Dimension Tilers Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59
Hearing dates:	1 April 2015
Decision date:	14 April 2015
Jurisdiction:	Consumer and Commercial Division
Before:	S F Smith, General Member
Decision:	1 The matter is to be listed for directions at the first convenient date. Jurisdiction found
Legislation Cited:	Home Building Act 1989
Cases Cited:	Jol v State of New South Wales (1998) 45 NSWLR 283; Woods v Bate (1986) 7 NSWLR 560
Category:	Procedural and other rulings
Parties:	Brendan Lavery (applicant) Dimension Tilers Pty Ltd (respondent)
Representation:	Messrs Pitcher Walton Solicitors for Respondent
File Number(s):	HB 15/00878

REASONS FOR DECISION

Proceedings

1. This is a twofold claim made by a person who is an owner builder in one matter and the builder in the other. The same issue, namely whether the application is out of time, is central to both and the respondent is the same corporation in each case. The claim is for a money payment of $39,327.39.

2. The claim was filed on 8 January 2015 and was first listed for directions on 19th of that month. On 5 February it was submitted by the respondent that the claims were out of time. Senior Member Meadows ordered that the preliminary jurisdictional issue be decided on the papers before the matter progressed further.

Background

3. In what I shall call the Raven Street claim, the respondent did tiling work at [***] Raven Street [***] in about August 2011. The applicant was an owner builder in that case. He now alleges that the tiling works as performed by the respondent were defective and seeks a remedy against Dimension in this Tribunal.

4. The other matter I shall refer to as the Rosser St matter. Here, the applicant was acting as a licensed builder to construct a dwelling for a client at [***]Rosser St [***] in September 2009. Dimension did tiling work as subcontractor to Mr Lavery. The homeowner found the work defective and sued Mr Lavery to judgment in this Tribunal. In total $11,170.00 was awarded against him for the tiling work. In the present claim the applicant seeks to recover from Dimension as subcontractor, the amounts he paid to the homeowner for the defective tiling work.

Applicant’s Submission

5. Mr Lavery submits that these are statutory warranty claims and thus the time limits of s 18E apply. He says that as the contract in each case was entered into before 1 February 2012, there is a 7 year limitation period. As a result he suggests that both claims are within time.

Respondent’s Submission

6. Mr Walton for the respondent does not take issue with Mr Lavery’s calculation but raises two other issues, a different one for each aspect of the claim.

Raven St

7. The respondent relies on s.48J which provides that:

48 The principal registrar must reject any …building claim unless

a)…the claim has been investigated under Division 2 or

b) The President ...directs that it be accepted without such investigation

8. He also…