Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94 Hearing dates: 14 November 2022 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member M Gracie, Senior Member Decision: 1. The appeal is allowed. 2. Order 2 of the orders made by the Tribunal on 2 June 2022 is set aside. 3. The claims the subject of Order 2 of the orders made by the Tribunal on 2 June 2022 are remitted to the Tribunal, differently constituted, for redetermination, according to law. 4. The appellants' costs of the appeal are to be paid by the respondents. 5. The costs order made by the Tribunal on 15 September 2022 is set aside. 6. The question as to what order for costs, if any, is to be made in substitution for the costs order made on 15 September 2022 is remitted to the Tribunal, differently constituted, for redetermination. 7. The parties have liberty to apply to vary the costs orders made in (4), (5) and (6) within 14 days from the date of publication of these reasons, accompanied by written submissions in support of any such application. 8.Each party is to provide submissions in reply to any such written submissions within 14 days of the receipt of such submissions. Catchwords: APPEAL - decision of Consumer and Commercial Division – purchase of a lot in a strata scheme upon which a dwelling was to be built – alleged breach of statutory warranties in s 18B of the Home Building Act 1989 (NSW) in respect of the dwelling as built – claims by purchaser against the developer and the builder under ss 18C and 18D -purchaser a successor in title within the meaning of that term in ss 18C and 18D - alleged completion of purchase of lot with knowledge of building defects –whether the Tribunal was correct to consider that decision by purchaser to complete with notice or assumed knowledge of defects in light of the non-exercise of potential redress under the conveyance contract between the purchaser and the developer precluded application of statutory warranties - jurisdiction of Tribunal in relation to additional claim under the Design and Building Practitioners Act 2020 (NSW) - questions of law raised on appeal– appeal upheld – costs – remitter to differently constituted Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Design and Building Practitioners Act 2020 (NSW) Home Building Act 1989 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310. Allianz Australia Insurance Ltd v Waterbrooke at Yowie Bay Pty Ltd [2009] NSWCA 224 Baron Corporation Pty Ltd v Owners of Strata Plan No 69567 [2013] NSWCA 238 Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 Owners Corporation Strata Plan 64757 v MJA Group Pty Ltd (2011) NSWCA 236 Owners SP 92648 v Binah Constructions PL [2021] NSWCATAP 68 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Category: Principal judgment Parties: Rodney John Deaves & Danielle Simone Deaves (Appellants) Sigma Group (NSW) Pty Limited (First Respondent) Cazo Constructions Pty Limited (Second Respondent) Representation: Counsel: P Newton SC and M Hazan (Appellants) D P O'Connor (Respondents)