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McLachlan v Edwards Landscapes Pty Ltd

McLachlan v Edwards Landscapes Pty Ltd

Case [2023] NSWSC 532 19 May 2023

Jurisdiction

Appeal

Breach of Contract

Building & Construction Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: McLachlan v Edwards Landscapes Pty Ltd [2023] NSWSC 532
Hearing dates: 11 May 2023
Date of orders: 19 May 2023
Decision date: 19 May 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Refuse leave to appeal.
(2) Order the plaintiffs’ to pay the defendant’s costs of the proceedings in this Court.

Catchwords:
BUILDING AND CONSTRUCTION – jurisdiction of NSW Civil and Administrative Tribunal under the Home Building Act 1989 (NSW) – where claim substantively concerns breach of statutory warranty
APPEALS – leave to appeal – whether leave required – interlocutory decisions – where matter transferred from Local Court to NSW Civil and Administrative Tribunal

Legislation Cited:
Design and Building Practitioners Act 2020 (NSW)
Home Building Act 1989 (NSW)
Local Court Act 2007 (NSW)

Cases Cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Café Du Liban Pty Ltd v Bespoke Garage Pty Ltd [2017] NSWSC 779
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 402; [2022] NSWCA 118
David Cameron Jones t/as Oz Style Homes v Panchal [2018] NSWCATAP 238
Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636; [2003] NSWCA 231
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Laycock v Putty Community Association Incorporated [2006] NSWSC 900
Marks v Stafflair [2012] NSWCTTT 199
Namoi Sustainable Energy Pty Limited v Buhren [2022] NSWSC 175
Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147; [1982] HCA 9
Secretary, Department of Treasury and Finance v Kelly (2001) 4 VR 595; [2001] VSCA 246
Tinsley v Masterton Homes Pty Ltd [2013] NSWCTTT 26

Category: Principal judgment
Parties: Kurt McLachlan (first plaintiff)
Jillian McLachlan (second plaintiff)
Edwards Landscapes Pty Ltd (defendant)
Representation:
Counsel:
P Tiliakos (plaintiffs)
T Flaherty (defendant)
Solicitors:
Robertson Saxton Osborne Lawyers (plaintiffs)
Sally Callander Law (defendant)

File Number(s): 2022/354658
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

General Division

Citation:

Not published

Date of Decision:

27 October 2022

Before:

Greenwood LCM

File Number(s):

2022/192621

JUDGMENT

Introduction

This is an appeal from a decision of a Local Court Magistrate transferring a home building dispute that had been commenced in that Court to the NSW Civil and Administrative Tribunal (‘NCAT’ or ‘the Tribunal’). The transfer was sought by the builder, but resisted by the homeowners.
The issue raised by the appeal is narrow: it is whether the building dispute, that had been commenced in the Local Court, was one that could be heard by the Tribunal.

Background

The background facts are confined. Shortly stated, they are as follows.
Kurt and Jillian McLachlan (‘the plaintiffs’) are the owners of a residential property – 30 Saddington Street, South Turramurra, NSW.
They retained, by agreement dated 10 October 2018, Edwards Landscapes Pty Ltd (‘the defendant’) – essentially to install an inground swimming…

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.

Continue reading McLachlan v Edwards Landscapes Pty Ltd

Details

AGLC: McLachlan v Edwards Landscapes Pty Ltd [2023] NSWSC 532
Case: [2023] NSWSC 532
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the case of McLachlan v Edwards Landscapes Pty Ltd, the dispute centred on a breach of statutory warranty under the Home Building Act 1989 (NSW). The appellant, McLachlan, sought to challenge the jurisdiction of the NSW Civil and Administrative Tribunal in relation to the respondent, Edwards Landscapes Pty Ltd. The dispute originated from a claim filed in the Local Court, which was subsequently transferred to the NSW Civil and Administrative Tribunal. The primary concern was whether the tribunal had the requisite jurisdiction to hear the matter, given that the claim substantively involved a breach of statutory warranty.

The central legal issue before the court was whether the NSW Civil and Administrative Tribunal had the authority to adjudicate over the claim that was fundamentally a breach of statutory warranty under the Home Building Act 1989 (NSW). The court needed to determine if the transfer of the case from the Local Court to the tribunal was appropriate and if the tribunal could validly exercise jurisdiction over the matter.

In resolving the matter, the court examined the statutory provisions and found that the NSW Civil and Administrative Tribunal did indeed possess the jurisdiction to hear cases involving breaches of statutory warranties under the Home Building Act. The court considered that the transfer of the case from the Local Court to the tribunal was justified, as the tribunal was equipped to handle disputes of this nature. Consequently, the court upheld the tribunal's jurisdiction and dismissed the appeal on the grounds that the tribunal was correctly vested with the authority to address the statutory warranty breach.

The final orders of the court confirmed that the NSW Civil and Administrative Tribunal had the requisite jurisdiction to hear the matter and affirmed the tribunal's decision to transfer the case from the Local Court. The court's ruling reinforced the tribunal's authority to adjudicate over claims concerning breaches of statutory warranties under the Home Building Act 1989 (NSW).

Orders