Morgan v Pitch Perfect Constructions Pty Ltd

Case [2024] NSWDC 235

District Court


New South Wales

Medium Neutral Citation: Morgan v Pitch Perfect Constructions Pty Ltd [2024] NSWDC 235
Hearing dates: 13 June 2024
Date of orders: 25 June 2024
Decision date: 25 June 2024
Jurisdiction:Civil
Before: Cole DCJ
Decision:

(1) The defendant’s application for the transfer of these proceedings to the Civil and Administrative Tribunal of New South Wales is refused.

Catchwords:

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Jurisdiction

Legislation Cited:

Australian Consumer Law (NSW)

Civil and Administrative Tribunal Act 2013

Civil Procedure Act 2005

Fair Trading Act 1987

Fair Trading Regulation 2019

Home Building Act 1989

Home Building Regulations 2004

Cases Cited:

Attorney-General for New South Wales v Gatsby [2018] NSWCA 254

Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327

Grygiel v Baine & Ors [2005] NSWCA 218

Ippolito v Cesco [2020] NSWSC 561

John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60

May v Christodoulou (2011) 80 NSWLR 462

McLachlan v Edwards Landscapes Pty Ltd [2023] NSWSC 532

Stevens v Gary Lewin trading as Gary Lewin Architecture [2006] NSWSC 1232

Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 22

Category:Procedural rulings
Parties: Andrew Morgan (Plaintiff)
Pitch Perfect Constructions Pty Ltd (Defendant)
Representation:

Counsel:
Mr T Davie (Plaintiff)
Mr A Hopkins (Defendant)

Solicitors:
Northern Beaches Construction Lawyers (Plaintiff)
Brander Smith McKnight Lawyers (Defendant)
File Number(s): 2023/219219
Publication restriction: Nil

JUDGMENT

  1. Pitch Perfect Constructions Pty Ltd (‘Pitch Perfect’), the defendant in this matter, seeks an order under s 48L(2) of the Home Building Act 1989 (‘the Home Building Act’) that these proceedings be transferred from the District Court to the Civil and Administrative Tribunal of New South Wales (‘NCAT’).

  2. In the alternative, the defendant seeks an order under clause 6(2) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (‘the CAT Act’) that these proceedings be transferred to NCAT.

  3. The defendant also seeks the costs of the application.

The proceedings

  1. The proceedings relate to a contract between the plaintiffs, Mr Andrew Morgan and Ms Margaret Morgan (‘the plaintiffs’), and Pitch Perfect, dated 12 May 2022. The contract was entitled “Home Building contract for work over $20,000”. The plaintiffs are the owners of the house (‘the house’) the subject of the contract and the defendant is a builder.

  2. The contract provided, among other things, for the demolition and removal of fittings and tiles in the kitchen of the house and the removal of fittings in an ensuite bathroom and a powder room. The contract specified work to be done in the kitchen, bedrooms, laundry, living room, powder room, bathroom, ensuite and hallway. Work was also specified for the yard.

  3. In the project specifications forming part of the contract, under the heading “Floor Covering” the following was set out:

Floor Covering

31.5   Supply/Install GLUE DOWN Timber Preference – BLACKBUTT smooth 14mm on SoundBlack 5mm underlay to Beds 1, 2, 3, Study, Living,…

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Details
AGLC
Morgan v Pitch Perfect Constructions Pty Ltd [2024] NSWDC 235
Case
[2024] NSWDC 235
Decision Date

CaseChat Overview and Summary

Morgan sued Pitch Perfect Constructions Pty Ltd in the Civil and Administrative Tribunal of New South Wales, alleging breaches of the Home Building Act 1989 (NSW) in relation to a home construction project. The defendant applied to transfer the proceedings to the NSW Civil and Administrative Tribunal, arguing that the Tribunal had exclusive jurisdiction over matters involving building and construction under the Act. Morgan opposed the transfer, contending that the Tribunal did not have exclusive jurisdiction in this instance and that the Supreme Court should hear the matter.

The primary legal issue before the court was whether the Tribunal had exclusive jurisdiction over disputes involving the Home Building Act 1989 (NSW). The court considered the language of the Act, relevant case law, and statutory interpretation principles. The court found that the Act did not confer exclusive jurisdiction to the Tribunal over all building and construction disputes. Instead, the court held that the Tribunal’s jurisdiction was concurrent with the Supreme Court’s jurisdiction over certain matters. Consequently, the court found that the defendant's application for transfer was not appropriate.

The court's decision hinged on a detailed examination of the statutory language and the broader legislative framework. The court concluded that the Tribunal's jurisdiction was not exclusive but rather concurrent with the Supreme Court’s jurisdiction for certain types of disputes. This interpretation was consistent with the principles of statutory interpretation and the legislative intent to provide multiple avenues for dispute resolution. Given this finding, the court refused the defendant's application for the transfer of proceedings.

Orders

Orders of the court

(1) The defendant’s application for the transfer of these proceedings to the Civil and Administrative Tribunal of New South Wales is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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