Raysons Constructions Pty Ltd v The Owners Strata Plan No 87003 [2024] NSWCATAP 113

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Raysons Constructions Pty Ltd v The Owners Strata Plan No 87003 [2024] NSWCATAP 113 Hearing dates: 12 and 26 February 2024 Date of orders: 20 June 2024 Decision date: 20 June 2024 Jurisdiction: Appeal Panel Before: S Thode, Principal Member D Fairlie, Senior Member Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The orders made in HB 20/49739 are set aside. (4) In lieu thereof the Appeal Panel orders that application HB 20/49739 be dismissed. (5) Subject to order 6, the respondent is to pay the appellant's costs of the appeal on the ordinary basis, as agreed or assessed. (6) Should either party seek a different costs order, the following directions apply: (a) The applicant for costs (costs applicant) must file and serve any application with its written submissions on that issue (no more than 5 pages) within 14 days of the date of these orders. (b) Upon filing an application in accordance with order 6(a), order 5 will cease to have effect. (c) A costs respondent must file and serve any written submissions in response (no more than 5 pages), within a further 14 days of receipt of the costs applicant's submissions. (d) A costs applicant may file and serve a written submission (no more than 3 pages) in reply within a further 7 days of receipt of the costs respondent's submissions. (e) In any such submission the parties are to address the matter of whether, pursuant to the provisions of s50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal, so that the issue is decided on the papers lodged with the Appeal Panel and with appearance of the parties not required. Catchwords: APPEALS- BUILDING AND CONSTRUCTION – statutory warranties expired – s18E(1)(e) not enlivened – owners corporation became aware of the defects in 2014 – proceedings commenced on 29 November 2020 - limitation period expired - whether jurisdiction to hear and determine the issues between the parties – mixed question of fact and law - whether the decision of the Tribunal was against the weight of the evidence - whether leave to appeal should be granted – whether the appellant has suffered a substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW). Home Building Act 1989 (NSW); Cases Cited: Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233 Bardon v Occhiuto Enterprises [2016] NSWCATAP 191 Collins v Urban [2014] NSWCATAP 17 Cyril Smith & Associates Pty Ltd v The Owners – Strata Plan No 64970 [2011] NSWCAT 181 Honeywood v Munnings Honeywood as Executrix of Honeywood v Murray [2006] NSWCA 215; (2006) 67 NSWLR 466 Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730 at 746 Parkview Constructions Pty Ltd v The Owners – Strata Plan 90018 [2023] NSWCA 66 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 The Owners - Strata Plan No 90018 v Parkview Constructions Pty Ltd [2022] NSWSC 1123 The Owners SP 78460 v MD Constructions Pty Limited [2016] NSWSC 162 Texts Cited: M Robinson and J Lucy - NCAT Practice and Procedure Second Edition 2020 Category: Principal judgment Parties: Raysons Constructions Pty Ltd (Appellant) The Owners – Strata Plan No. 87003 (Respondent) Representation: G Carolan (Appellant)