Fair Trading Administration Corporation v The Owners Strata Plan 58185 & Anor [2010] NSWSC 96

New South Wales Supreme Court

CITATION : Fair Trading Administration Corporation v The Owners Strata Plan 58185 & Anor [2010] NSWSC 96

HEARING DATE(S) : 14th September 2009

JUDGMENT DATE : 8 February 2010

JUDGMENT OF : Latham J

1. The orders and decision of the second defendant on 11 June 2009 in matter no. HB 08/49526 were beyond power and are null and void. 2. The claim made by the first defendant on the plaintiff on 7 August 2008 was barred by the operation of the Comprehensive Scheme contained in Form 4 of Schedule 1 of the Building Services Corporation Regulation. DECISION : 3. The plaintiff is not liable to the first defendant under the Scheme. 4. The first defendant is restrained from prosecuting application HB08/49526 before the second defendant. 5. The second defendant is restrained from further hearing application HB08/49526. 6. I award costs in favour of the plaintiff.

CATCHWORDS : ADMINISTRATIVE LAW - whether initial proceedings affected by jurisdictional error - whether claim under statutory insurance scheme was barred - determination of liability outside prescribed statutory period.

LEGISLATION CITED : Consumer Trader and Tenancy Tribunal Act 2001 Building Services Corporation Act 1989 (now superseded by the Home Building Act 1989)

CATEGORY : Principal judgment

Craig v State of South Australia (1994-1995) 184 CLR 163 Kirk v Industrial Relations Commission [2010] HCA 1 Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 Fair Trading Administration Corporation v Owners Corporation SP 43551 [2002] NSWSC 624 CASES CITED : Hristorforidis v FTAC [2007] NSWSC 1243 Owners of Strata Plan 43551 v FTAC ; Walter Construction Group v FTAC [2004] NSWSC 158 Walter Construction Group v FTAC ; FTAC v Owners SP 43551 [2005] NSWCA 65 Owners Strata Plan 51673 v FTAC [2009] NSWSC 816 Owners of Strata Plan 43551 v FTAC ; Walter Construction Group v FTAC