THE OWNERS OF STRATA PLAN 41133 and LENDLEASE PROJECT MANAGEMENT AND CONSTRUCTION (AUSTRALIA) PTY LTD

The Owners of Strata Plan 41133, the applicant, applied to the State Administrative Tribunal (SAT) for a review of a decision of the Building Commissioner, the second respondent, to refuse to accept two complaints made against Lendlease Project Management and Construction (Australia) Pty Ltd, the first respondent. The Building Commissioner had refused to accept the complaints on the basis that they were made out of time, being more than six years after the completion of the regulated building service to which the complaints related. The applicant sought to establish that the relevant building services had been carried out within the six year time limit. The applicant also sought to establish that it was not precluded from proceeding with the complaints because of an earlier complaint made in 2008. The first respondent conceded that any work undertaken by it within a period of six years preceding the lodging of the complaints should have been accepted by the Building Commissioner as being within time, but subject to consideration of the effect of the 2008 complaint. The Tribunal concluded that a complaint made to the Building Commissioner must be supported by material disclosing an allegation that the regulated building service work was carried out within the six year time limit. It was necessary for the material provided by the parties to enable a positive finding to be made, that the building service the subject of a complaint was made out of time. The Tribunal concluded that there was evidence which was not obviously unsustainable to the effect that the relevant regulated building service was carried out within the time limit and it therefore could not be positively concluded that the complaints were made out of time. In relation to the complaint made in 2008, the evidence established that the complaint had been lodged to protect the applicant's statutory rights and that the Building Disputes Tribunal had been requested to take no further action beyond acceptance and registration of the complaint. It was not possible to reconcile the 2008 complaint with the current complaints, but there was nothing to suggest that there had been any final determination of the complaint. The Tribunal concluded that it would be an inappropriate exercise of a discretion to refuse to accept the current complaints on that basis, because it was evident that the 2008 proceeding had not been finalised following full argument by proper contradictors. The Tribunal set aside the decision under review, gave directions in relation to the need to properly investigate the status of the 2008 complaint and adjourned the matter to a directions hearing to address how the question of costs should be finalised.