The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66
Hearing dates:
7 February 2025; supplementary submissions and materials 11, 21 and 24 February 2025
Decision date:
25 February 2025
Jurisdiction:
Common Law
Before:
Leeming JA
Decision:
1. Grant leave to appeal.
2. Appeal allowed.
3. Set aside the orders made by an Appeal Panel of NCAT on 20 June 2024.
4. Note that the effect of the above orders is that the internal appeal brought by Raysons Constructions Pty Ltd remains undetermined by NCAT.
5. Raysons Constructions Pty Ltd to pay the Owners Corporation’s costs of its proceedings in this Court.
6. Exhibit C will be the annotated table of similarities and differences between the matters known to the Owners Corporation in the first 5½ years contrasted with the claims advanced in the points of claim, including annexures, emailed to my chambers on 11 February 2025.
7. The exhibits may be returned.
Catchwords:
APPEAL — question of law — Civil and Administrative Tribunal — proceedings for breach of statutory warranties implied by Home Building Act 1989 (NSW) in residential building work — six year warranty period — Owners Corporation commenced proceedings four months after expiry of six year period — whether proceeding commenced in time — Senior Member found Owners Corporation commenced within further six month period authorised by s 18E(1)(e) because breaches only became apparent in last six months of warranty period — internal appeal — Appeal Panel overturned findings of fact and found proceedings not commenced in time — whether inconsistency on the face of Senior Member’s reasons was a slip — whether Appeal Panel’s construction of reasons involved error of law
BUILDING AND CONSTRUCTION — residential building work — Home Building Act 1989 (NSW), s 18E — construction of provision authorising commencement of proceedings in six months after expiry of six year warranty period — whether plaintiff bears onus of establishing facts so as to fall within s 18E(1)(e) — nature of awareness needed to be established in order to fall within section — significance of commencement of proceedings being jurisdictional
[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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The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66
Case
[2025] NSWSC 66
Decision Date
CaseChat Overview and Summary
In the case of The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd, the Owners Corporation of a strata plan initiated proceedings against Raysons Constructions Pty Ltd for alleged breaches of statutory warranties under the Home Building Act 1989 (NSW). The dispute centred around whether the Owners Corporation's action was time-barred, having been initiated four months after the six-year warranty period had expired. The Civil and Administrative Tribunal (CAT) had to determine whether the Owners Corporation's action was filed within the additional six-month period permitted by section 18E(1)(e) of the Act, which allows proceedings to be commenced if the breaches only became apparent in the last six months of the warranty period.
The legal issues before the court were whether the Senior Member's findings regarding the timeliness of the proceedings were correct and whether the Appeal Panel's reversal of those findings involved an error of law. Specifically, the court had to decide whether the inconsistency in the Senior Member's reasons constituted a slip and whether the Appeal Panel correctly interpreted the legal obligations of the Owners Corporation in establishing their entitlement to the extended period for initiating proceedings. The court also needed to consider the burden of proof in relation to the facts that must be established to invoke section 18E(1)(e) of the Act and the nature of awareness required to fall within the provision.
The Appeal Panel concluded that the Owners Corporation's action was not timely and, therefore, dismissed the proceedings. They found that the Senior Member's reasons contained an inconsistency and that this inconsistency rendered the Senior Member's findings flawed. The Appeal Panel held that the Owners Corporation did not bear the onus of proving that the breaches only became apparent in the final six months of the warranty period. Instead, they considered that the Owners Corporation needed to demonstrate that they became aware of the breaches within that timeframe. The court found that the Appeal Panel's interpretation of the legal requirements and its reversal of the Senior Member's findings did not involve an error of law, affirming the Appeal Panel's decision. Consequently, the Owners Corporation's appeal was dismissed, and the proceedings were ruled to be out of time.