S Turnell and W Turnell v Atlantic Construction Pty Ltd [2014] NSWCATCD 89

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: S Turnell and W Turnell v Atlantic Construction Pty Ltd [2014] NSWCATCD 89 Hearing dates: 11 March 2014 Decision date: 29 May 2014 Before: F E Gray, General Member Decision: 1.The application was not lodged within the time period stipulated pursuant to s 48K(7) of the Home Building Act 1989, and accordingly that part of the claim is dismissed. 2.The applicant is granted leave to amend their application to include an application pursuant to s 48K(3) of the Home Building Act 1989. 3.The matter is to be listed for a Directions Hearing in relation to the substantive application as soon as practicable. Catchwords: Jurisdiction, time limitations, practical completion Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: S Turnell and W Turnell (applicants) Atlantic Construction Pty Ltd (respondent) Representation: Mr Marsh (Respondent) File Number(s): HB 13/45520

reasons for decision

The application 1The applicants lodged an application with the Tribunal on 27 August 2013 seeking orders that the respondent pay the applicants the sum of $85,552.00, pursuant to the Home Building Act 1989 ("the Act").

Onus and standard of proof 2The applicants bear the onus of proving their case on the balance of probabilities.

Preliminary issue 3The matter was listed on 11 March 2014 to determine whether the application was lodged within time pursuant to the Act. 4The applicants assert that their application was lodged within time. The respondent asserts that it was not. 5The applicant was represented by Mr Raine of counsel. The respondent was represented by Mr Marsh.