Ross v Cochran t/as Cochran Homes - [2024] NSWCATCD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ross v Cochran t/as Cochran Homes [2024] NSWCATCD 5
Hearing dates: 12 July 2024
Date of orders: 15 July 2024
Decision date: 15 July 2024
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1   The application is dismissed.
2   Any submissions (not exceeding five pages) and any evidence in support of an application for costs are to be filed and served by 29 July 2024.
3   Any submissions (not exceeding five pages) and any evidence in response are to be filed and served on or before 12 August 2024.
4   Any submissions (not exceeding two pages) and any evidence in reply are to be filed and served on or before 19 August 2024.
5 Any such submissions are to include an indication of whether an order should be made, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), to dispense with a hearing as to costs.

Catchwords:
CIVIL PROCEDURE – Time – extension of time
BUILDING AND CONSTRUCTION – Renewal application – defects claim

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Kay v 3D Design & Build Pty Ltd [2016] NSWCATAP 68
Minifie v Maxwell [2020] NSWCATAP 30
Owners of Strata Plan No 76700 v Trentelman [2021] NSWCATAP 205
Prince Alfred College Inc v ADC [2016] HCA 37
Stephens v Australian Postal Corporation [2010] FMCA 1012
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57
The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28

Texts Cited:
None cited

Category: Principal judgment
Parties: Applicants – Graham Ross and Louise Ross
Respondent – Glenn Cochran t/as Cochran Homes
Representation: Counsel:
Applicants – J Horowitz
Respondent – A Wilson

File Number(s): 2024/00070944
Publication restriction: Nil

REASONS FOR DECISION

Outline

A work order having been made by consent on 28 April 2021, the owners of a property in McMasters Beach (the applicants) lodged a renewal application against the builder (the respondent) on 14 February 2024. That application was listed for hearing of the preliminary issue of whether the time for that application to be lodged should be extended.
After considering the evidence and the submissions, both written and oral, the Tribunal determined that the 12-month period for the lodging of a renewal application should not be extended from 1 September 2022 to 14 February 2024, a period of more than 17 months. As a result, the application was dismissed, and provision was made for submissions as to the costs of the renewal application.

Jurisdiction

As the Tribunal had jurisdiction to consider the earlier application, which bore the reference HB 19/51052, the Tribunal clearly has jurisdiction…

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: [2024] NSWCATCD 5
Decision Date: 15 July 2024

CaseChat Overview and Summary

The matter before the court involved a dispute between Ross and Cochran Homes, trading as Cochran Homes, regarding a defects claim under the Home Building Act 1989 (NSW). Ross sought to extend the time limit for lodging a claim for defects in a property built by Cochran Homes. The case was heard in the Civil and Administrative Tribunal (CAT) of New South Wales.

The central legal issue was whether Ross's application for an extension of time to lodge a claim for defects in the property was justified under the circumstances presented. The court had to consider whether the delay in lodging the claim was reasonable and whether there were exceptional circumstances that warranted an extension of the statutory time limit. Additionally, the court needed to determine the appropriate timeline for any subsequent submissions and evidence related to the application for costs.

The court dismissed Ross's application for an extension of time, finding that the delay was not reasonable and that no exceptional circumstances existed to justify an extension. The court outlined a schedule for the submission of any further evidence and arguments related to an application for costs, specifying the deadlines for filing and serving such submissions and evidence. The court also directed that any submissions regarding a potential order to dispense with a hearing on costs be included in the relevant submissions.

The court's orders included the dismissal of the application for an extension of time, and established a timeline for any further submissions and evidence related to a potential application for costs. This timeline included deadlines for the filing and serving of submissions and evidence, as well as the inclusion of any indication of whether an order should be made to dispense with a hearing on costs.

Orders

Orders of the court

1 The application is dismissed.

2 Any submissions (not exceeding five pages) and any evidence in support of an application for costs are to be filed and served by 29 July 2024.

3 Any submissions (not exceeding five pages) and any evidence in response are to be filed and served on or before 12 August 2024.

4 Any submissions (not exceeding two pages) and any evidence in reply are to be filed and served on or before 19 August 2024.

5 Any such submissions are to include an indication of whether an order should be made, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), to dispense with a hearing as to costs.

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:	Ross v Cochran t/as Cochran Homes [2024] NSWCATCD 5
Hearing dates:	12 July 2024
Date of orders:	15 July 2024
Decision date:	15 July 2024
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1 The application is dismissed. 2 Any submissions (not exceeding five pages) and any evidence in support of an application for costs are to be filed and served by 29 July 2024. 3 Any submissions (not exceeding five pages) and any evidence in response are to be filed and served on or before 12 August 2024. 4 Any submissions (not exceeding two pages) and any evidence in reply are to be filed and served on or before 19 August 2024. 5 Any such submissions are to include an indication of whether an order should be made, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), to dispense with a hearing as to costs.
Catchwords:	CIVIL PROCEDURE – Time – extension of time BUILDING AND CONSTRUCTION – Renewal application – defects claim
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kay v 3D Design & Build Pty Ltd [2016] NSWCATAP 68 Minifie v Maxwell [2020] NSWCATAP 30 Owners of Strata Plan No 76700 v Trentelman [2021] NSWCATAP 205 Prince Alfred College Inc v ADC [2016] HCA 37 Stephens v Australian Postal Corporation [2010] FMCA 1012 TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57 The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Applicants – Graham Ross and Louise Ross Respondent – Glenn Cochran t/as Cochran Homes
Representation:	Counsel: Applicants – J Horowitz Respondent – A Wilson
File Number(s):	2024/00070944
Publication restriction:	Nil