Building Insurers' Guarantee Corporation v The Owners - Strata Plan 60848 [2012] NSWCA 375

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Building Insurers' Guarantee Corporation v The Owners - Strata Plan 60848 [2012] NSWCA 375 Hearing dates: 5 September 2012 Decision date: 16 November 2012 Before: Macfarlan JA at [1] Bergin CJ in Eq at [2] Sackville AJA at [55] Decision: 1. An order in the nature of certiorari quashing the orders made by McLoughlin DCJ on 3 February 2012. 2. Remit the matter to the District Court to hear and determine according to law. 3. The respondent is to pay the applicant's costs of the proceedings in this Court. Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: [ADMINISTRATIVE LAW] - whether by operation of s 69(5) of the Supreme Court Act 1970 and s 65(1) of the Consumer Trader and Tenancy Tribunal Act 2001 (CTTT Act) the jurisdiction of the Supreme Court to grant an order in the nature of certiorari is limited to decisions affected by jurisdictional error - whether primary judge exceeded appellate jurisdiction conferred by s 67 of the CTTT Act - whether primary judge erred in construction of s 18G of the Home Building Act 1989. Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2009) 74 NSWLR 481 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd & Anor [2010] HCA 32; (2010) 241 CLR 390 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 Category: Principal judgment Parties: Building Insurers' Guarantee Corporation (Appellant) The Owners - Strata Plan 60848 (Respondent) Representation: T Lynch/D Hand (Appellant) JT Svehla (Respondent) Mills Oakley Lawyers (Appellant) Snelgroves (Respondent) File Number(s): 2012/151653 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Citation: N/A Date of Decision: 2012-02-03 00:00:00 Before: McLoughlin DCJ File Number(s): 2011/280490