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Tran v Buildarch Pty Ltd

Tran v Buildarch Pty Ltd

Case [2022] NSWCATCD 214 3 November 2022

Limitation Periods

Jurisdiction

Costs

Civil Litigation & Procedure

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Tran v Buildarch Pty Ltd [2022] NSWCATCD 214
Hearing dates: 02 November 2022
Date of orders: 03 November 2022
Decision date: 03 November 2022
Jurisdiction: Consumer and Commercial Division
Before: G Ellis SC, Senior Member
Decision:

1. The application to transfer these proceedings to the District Court is dismissed.

2. The question of the costs of the application to transfer are reserved.

Catchwords:
BUILDING AND CONSTRUCTION - Home building - limitation period - s 48K(8) Home Building Act 1989 - whether to transfer proceedings to the District Court

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 36, cl 6 of Schedule 4
Home Building Act 1989 (NSW), s 48K(8)

Cases Cited:
AHB v NSW Trustee and Guardian [2014] NSWCA 40
AoN Risk Services v Australian National University [2009] HCA 27
Australian Timber Supplies Pty Ltd v Agia [2014] NSWSC 1308
Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CR 613
BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103
Blair v Curran [1939] HCA 23, 62 CLR 464
BOC v MDL [2019] NSWSC 278
Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536
Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23
Cropper v Smith (1884) 26 Ch D 700
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227
Haines v Bendall [1991] HCA 15
Hau Shan v Fairfield City Council [2020] NSWSC 681
Ketteman v Hansel Properties [1987] 1 AC 189
RCR Resolve FM v Serco Australia [2014] NSWSC 1477
Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26
The Owners – Strata Plan No 74835 v Pullicin;
The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5

Category: Consequential orders
Parties: Applicants: Vinh Hong Tran and Carmen Duong
Respondent: Buildarch Pty Ltd
Representation:
Counsel:
Applicants - T Davie
Respondent - M Bennett
Solicitors:
Applicant - Peter Merrity, solicitor
Respondent - Farrar Legal Pty Ltd

File Number(s): HB 22/15777
Publication restriction: Nil

Reasons for decision

Outline

At the outset of a two-day hearing, the respondent (the builder) sought to have these proceedings transferred to the District Court which application was opposed by the applicants (the owners).
Documents considered by the Tribunal on this application were:

MFI 2      Affidavit of Vanessa Lee Steinfelder, dated 1 November 2022,
MFI 3      Builder’s submissions, and
MFI 5      Owners’ submissions.

An opportunity was provided for additional submissions. It was indicated that the application was refused and that written reasons would be provided later. These are those reasons.

History of the proceedings

On 12 April 2022 the owners lodged an application which was first listed for directions on 5 May 2022. The orders made on…

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.

Continue reading Tran v Buildarch Pty Ltd

Details

AGLC: Tran v Buildarch Pty Ltd [2022] NSWCATCD 214
Case: [2022] NSWCATCD 214
Decision Date: 03 November 2022

CaseChat Overview and Summary

Tran was a homeowner who engaged Buildarch to construct a home. Tran alleged that Buildarch failed to complete the project to the required standard. Buildarch denied liability. Tran brought an action in the Local Court under the Home Building Act 1989. Buildarch applied to the Local Court to transfer the proceedings to the District Court, arguing that Tran's claim was statute-barred. The application was brought more than four years after Tran's cause of action accrued, and more than six years after the work was completed. The Local Court needed to decide whether it had the power to transfer the proceedings under section 48K(8) of the Act.

The Local Court held that it had the power to transfer proceedings where the District Court has jurisdiction over the matter. However, the court found that the matter could not be transferred as the District Court lacked jurisdiction. The court held that, as the claim was brought under the Home Building Act, it was a "civil proceeding" within the meaning of section 23 of the Act. As such, the matter could not be transferred to the District Court. The court further found that the claim was not statute-barred. The limitation period did not begin to run until the work was completed and Tran knew, or ought to have known, of the defects.

The application to transfer these proceedings to the District Court is dismissed. The question of the costs of the application to transfer are reserved.

Orders

Orders of the court

1. The application to transfer these proceedings to the District Court is dismissed.

2. The question of the costs of the application to transfer are reserved.

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.

Citations

AGLC Citation

Tran v Buildarch Pty Ltd [2022] NSWCATCD 214

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

Beetson v Charnwood Constructions Pty Ltd
[2021] NSWCATCD 142 Para 15

…The Tribunal’s attention was also directed to Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142 at [28]-[29] which did no more than set out s 36 of the NCAT Act and cl 6 of Schedule 4, the latter provision having been quoted above.…
Hau Shan v Fairfield City Council
[2020] NSWSC 681 Para 1

…ribunal has jurisdiction at all, are important considerations ( BOC v MDL [2019] NSWSC 278 at [17-[19]; Hau Shan v Fairfield City Council [2020] NSWSC 681 at [14]; Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23).…
BOC v MDL
[2019] NSWSC 278 Para 1

…risk the jurisdictional limit will be exceeded; or whether the Tribunal has jurisdiction at all, are important considerations ( BOC v MDL [2019] NSWSC 278 at [17-[19]; Hau Shan v Fairfield City Council [2020] NSWSC 681 at [14]; Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419…
Breecass Pty Ltd v The Owners-Strata Plan No 61419; The Owners-Strata Plan No 61419 v Breecass Pty Ltd
[2019] NSWCATCD 23 Para 1

…ncil [2020] NSWSC 681 at [14]; Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23).…
RCR Resolve FM v Serco Australia
[2014] NSWSC 1477 Para 6

…d cost; delay; and the undesirability of having two sets of proceedings in two different jurisdictions ( RCR Resolve FM v Serco Australia [2014] NSWSC 1477 at [20]). If both sets of proceedings were transferred to a Court, there would be the same issues regarding increased cost and delay. A cost order against the bu…
Australian Timber Supplies Pty Ltd v Agia
[2014] NSWSC 1308 Para 1

…e of discretionary considerations. Those considerations may be impressionistic and evaluative ( Australian Timber Supplies Pty Ltd v Agia [2014] NSWSC 1308 at [2]). Where there is a significant risk the jurisdictional limit will be exceeded; or whether the Tribunal has jurisdiction at all, are important consideratio…
AHB v NSW Trustee and Guardian
[2014] NSWCA 40 Para 34

…Similarly, in AHB v NSW Trustee and Guardian [2014] NSWCA 40, at [6] it was said: “ This matter was fixed for hearing some considerable time ago and its presence in the List has prevented other matters being listed for hearing. The Court will not permit its List to be disrupted in this way without good reason .”…
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd
[2013] HCA 46 Para 33

…nal and other litigants, are relevant considerations: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [51].…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 32

…The relevant common law principles relating to adjournments were considered by the High Court in AoN Risk Services v Australian National University [2009] HCA 27, which is authority for the following propositions:…
Sanderson Motors Pty Ltd v Kirby
[2000] NSWSC 924 Para 1

…cision whether or not to transfer proceedings, there is a wide discretion to take into account any relevant matter ( Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [4)]. The fundamental consideration is whether there is “sufficient cause”; “sound ground”; or “good reason” for the transfer to be made. That per…
Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd
[1991] FCA 536

…tructions Pty Ltd v Sawan [2022] NSWCATAP 103 Blair v Curran [1939] HCA 23, 62 CLR 464 BOC v MDL [2019] NSWSC 278 Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536 Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23 Cropper v Smith (1884)…
Haines v Bendall
[1991] HCA 15 Para 27

…rs in the same position as if the contract had run a full and normal course, said to be a fundamental principle by the High Court in Haines v Bendall [1991] HCA 15 at [1].…
Bellgrove v Eldridge
[1954] HCA 36 Para 2

…his is to ensure that the homeowner is put into the same position as if the contract had been performed; not a better position ( Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CR 613 at [5]; Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 at [79]-[84]).…
Blair v Curran
[1939] HCA 23 Para 28

…ll govern the builder’s claim by reason of issue estoppel, the classic formulation of which is that of Dixon J (as he then was) in Blair v Curran [1939] HCA 23, 62 CLR 464 at 531-533. As a result, it may be expected that the liability aspect of the issues of repudiation and termination will be addressed in these…
Ghazal v Masterton Homes Pty Ltd
[2018] NSWCATAP 227 Para 35

…When considering an adjournment application, there is a need to exercise the discretion judicially: Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 at [54] which paragraph also confirms that there are numerous Appeal Panel decisions which confirm that:…
Sleiman t/as Perfect Kitchens v Dempsey
[2020] NSWCATAP 26 Para 2

…ract had been performed; not a better position ( Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CR 613 at [5]; Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 at [79]-[84]).…
BKB Constructions Pty Ltd v Sawan
[2022] NSWCATAP 103 Para 17

…the order sought and that it was in both parties’ interests that the proceedings be transferred. What was said in BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 ( BKB ) at [76]-[78] and part of [79] was quoted.…
[1987] 1 AC 189
[1987] 1 AC 189

…rton Homes Pty Ltd [2018] NSWCATAP 227 Haines v Bendall [1991] HCA 15 Hau Shan v Fairfield City Council [2020] NSWSC 681 Ketteman v Hansel Properties [1987] 1 AC 189 RCR Resolve FM v Serco Australia [2014] NSWSC 1477 Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 Sleiman t/as Perfect Kitchens v Dempsey [2020] N…
Cropper v Smith
(1884) 26 ChD 701

…orp Aust [1991] FCA 536 Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23 Cropper v Smith (1884) 26 Ch D 700 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Ghazal v Masterton Homes Pt…

Legislation cited in this decision · 2

Civil and Administrative Tribunal Act 2013 (NSW)
36 2 mentions (from Para 11)
Home Building Act 1989 (NSW)
48K(8) 2 mentions

Medium Neutral Citation:	Tran v Buildarch Pty Ltd [2022] NSWCATCD 214
Hearing dates:	02 November 2022
Date of orders:	03 November 2022
Decision date:	03 November 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Ellis SC, Senior Member
Decision:	1. The application to transfer these proceedings to the District Court is dismissed. 2. The question of the costs of the application to transfer are reserved.
Catchwords:	BUILDING AND CONSTRUCTION - Home building - limitation period - s 48K(8) Home Building Act 1989 - whether to transfer proceedings to the District Court
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36, cl 6 of Schedule 4 Home Building Act 1989 (NSW), s 48K(8)
Cases Cited:	AHB v NSW Trustee and Guardian [2014] NSWCA 40 AoN Risk Services v Australian National University [2009] HCA 27 Australian Timber Supplies Pty Ltd v Agia [2014] NSWSC 1308 Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142 Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CR 613 BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 Blair v Curran [1939] HCA 23, 62 CLR 464 BOC v MDL [2019] NSWSC 278 Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536 Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23 Cropper v Smith (1884) 26 Ch D 700 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 Haines v Bendall [1991] HCA 15 Hau Shan v Fairfield City Council [2020] NSWSC 681 Ketteman v Hansel Properties [1987] 1 AC 189 RCR Resolve FM v Serco Australia [2014] NSWSC 1477 Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5
Category:	Consequential orders
Parties:	Applicants: Vinh Hong Tran and Carmen Duong Respondent: Buildarch Pty Ltd
Representation:	Counsel: Applicants - T Davie Respondent - M Bennett Solicitors: Applicant - Peter Merrity, solicitor Respondent - Farrar Legal Pty Ltd
File Number(s):	HB 22/15777
Publication restriction:	Nil