Qi Y Ling and Bing Y Lin v Anil Beri

[2014] NSWCATCD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Qi Y Ling and Bing Y Lin v Anil Beri [2014] NSWCATCD 225
Hearing dates:	30 April 2014
Decision date:	18 November 2014
Jurisdiction:	Consumer and Commercial Division
Before:	G Meadows, Senior Member
Decision:	The application is dismissed as the Tribunal does not have jurisdiction to hear and determine the claim.
Legislation Cited:	Civil & Administrative Tribunal Act 2013 Home Building Act 1989
Category:	Principal judgment
Parties:	Qi Y Ling and Bing Y Lin – applicants Anil Beri – respondent
Representation:	Solicitors: Andresakis & Associates (applicant) Snelgroves (respondent)
File Number(s):	HB 13/37983
Publication restriction:	Nil

reasons for decision

The Claim

1. In these reasons I refer to Anil Beri as “the builder” (in fact an owner/builder) and Qi Y Ling and Bing Y Lin as “the owners”.

2. This application was filed on 21 May 2013. The application states the applicants are seeking an order that they are to be paid the amount of $225,955.00 and the total value of the claim is $500,000.00. The application states the dispute is about “Faulty Workmanship Report of G L Zakos dated 4/3/13 is attached”. The amount of $225,955.00 is the total cost of rectification recommended by Mr Zakos in his report.

The Jurisdictional Issue

3. The builder has raised a jurisdictional issue, stating that the building works the subject of this claim were completed in 2003 and that the builder and his family occupied the premises from early in 2003. Various documents have been provided by the builder in support of that assertion. Pursuant to ss 48K(7) and 48K(3) of the Home Building Act 1989 (“the Act”), the builder submits that the Tribunal does not have jurisdiction because the application was made more than 7 years after the date of completion of the building works or alternatively, more than 3 years after the supply of building goods and services.

4. The application is for breach of statutory warranties (based on my reading of Mr Zakos’s report) and so the relevant time limitation is 7 years.

5. The only other evidence before me consists of documents produced in answer to a summons by Baulkham Hills Shire Council, now called The Hills Shire Council.

6. The owners claim that although the builder asserts that the works were completed in 2003, they rely on the allegation that in fact building works continued up until and including 2009.

7. It is not raised by either party, but for the sake of completeness, I note that pursuant to the transitional provisions in Schedule 1 to the Civil and Administrative Tribunal Act 2013 (“CAT Act”), this application which commenced in the former Consumer Trader and Tenancy Tribunal is now to be heard and determined in this Tribunal and that I am sitting as a Member of this Tribunal, although applying the law as it existed as if the CAT Act (and relevant associated legislation) had not been passed. I am not aware that there is any dispute in that regard.

The Evidence

8. The report of Mr Zakos lists the following defects (in very summary form):

1. external retaining walls cracked and needing re-render;

2. rectify risers and treads in internal and external stairs;

3. rectify render to external walls of dwelling;

4. entry verandah: rectify water damage and box gutter;

5. rectify waterproofing to terraces and balconies;

6. prevent water ingress to internal areas via external doors;

7. rectify failed waterproofing to leaking shower recess in bathroom; and

8. prevent water entry to garage, storeroom and pavilion;

9. As noted previously, there are also numerous documents produced (on disc) by The Hills Shire Council.

10. In addition, the builder has provided a statement to which are annexed a number of documents including a Building Certificate, Home Owners Warranty insurance certificate and an Occupation Certificate, as well as a surveyor’s report, all for the purposes of the sale of the premises to the applicants, in 2009.

Consideration and Determination

11. At first glance it is clear why the applicants submit that building works continued until 2009. It says, for example, on the HOW insurance certificate that the works were completed in 2009. The Building Certificate states the date of inspection for the purposes of obtaining that certificate was 25 February 2009.

12. However, it is often the case in home building claims in this Tribunal that the actual date of completion is difficult to determine. In my view, the “date of completion” does not mean the date after which no further work whatsoever is done. Items may be left incomplete which do not have the effect of meaning the work is not complete. This is often considered in matters where there is a dispute as to the meaning of “practical completion”: that date on which the works are complete except for minor defects which do not prevent the premises from being reasonably used for their purpose.

13. There is also continuing debate over the issue of whether “completion” refers to the whole project being completed, or only the completion of discrete elements of the works, such as plumbing or electrical or brick works, some of which may be effectively completely finished before the overall project is completed. If the latter, there may be a series of difference jurisdictional time limits.

14. In my opinion, this case does not fall into that category of controversy, given the evidence available.

15. I find the works were completed before the end of 2003. It is not possible to determine the actual day of completion but the evidence makes clear that the works were completed at least by the end of that year. I find the builder and his family took possession and lived in the premises earlier in 2003.\

16. I have perused the documents provided by The Hills Shire Council. It is clear that there were unfinished items continuing into 2005 and even to 2009.

17. Up to 2005 the Council required further work to be done in relation to the swimming pool, for example, and also in relation to the unapproved and illegal construction of the front fence which was said to encroach on Council property and was required to be rebuilt. In my opinion, those works do not mean the building works were not completed for the purposes of determining when time should begin to run in relation to s 48K of the Act. Even if I am wrong in that regard, completion of works in 2005 would in any case put this application out of time.

18. The final works which required approval by the Council and which were not complete until 2009 related to the On Site Detention system for rainwater or stormwater. Without going into what was a lengthy history of this issue, it is clear that these works were not completed and not approved until 2009.

19. Turning to this application and to Mr Zakos’s report, I am satisfied that every item claimed to be defective in that report was completed in 2003. There is no mention that I could find in the Council documents referring to any such item as requiring work after 2003.

20. On the basis of that evidence, I find that the application is brought more than seven years after the date the building works were completed and therefore the Tribunal does not have jurisdiction to hear and determine this claim.

G Meadows

Senior Member

Civil and Administrative Tribunal of New South Wales

18 November 2014

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: 10 February 2015