Karan v Champion Homes Sales Pty Ltd [2016] NSWCATCD 84

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Karan v Champion Homes Sales Pty Ltd [2016] NSWCATCD 84 Hearing dates: 1 August 2016 Decision date: 20 October 2016 Jurisdiction: Consumer and Commercial Division Before: G.J. Sarginson, Senior Member Decision: The application is dismissed as the Tribunal has no jurisdiction. Catchwords: Home Building---Limitation of Actions---Statutory Warranties---Date of Practical Completion Legislation Cited: Home Building Act 1987 ss 3B, 18B, 18E, 48K Civil and Administrative Tribunal Act 2013 ss 36, 81 Cases Cited: Myers v Vero Insurance Ltd [2009] NSWCTTT 698 Owners Corporation SP 53127 v Fair Trading Administration Corporation [2005] NSWCTTT 230 Kizas v Lawteal Pty Ltd [2010] NSWCTTT 257 Griffiths v Gates [2013] NSWCTTT 302 The Owners Strata Plan No 78670 v Cavill Properties Pty Ltd [2014] NSWCATCD 218 Owners Corporation Strata Plan 64757 v MJA Group Pty Ltd [2011] NSWCA 236 Concourt Pty Ltd v Kerr [2015] NSWCATAP 106 Category: Principal judgment Parties: Manita & Jyotish Karan – Applicants Champion Homes Sales Pty Ltd – Respondent Representation: Applicants: In person Respondent: G Vardas, Business Manager File Number(s): HB 16/18233 Publication restriction: unrestricted

REASONS FOR DECISION 1. The matter was listed for hearing at the Tribunal in Liverpool on 1 August 2016. The applicants appeared and gave evidence. Mr Vardas, Business Manager, appeared for the respondent and gave evidence. 2. There is no dispute that the applicants are the owners of residential premises at Hoxton Park NSW, or that the respondent is a licenced builder who was in a contractual arrangement to construct the residential premises. The significant issues in dispute are: 1. Whether the Tribunal has jurisdiction in the matter, by reason of the 7 year limitation period for the statutory warranty implied into all residential building contracts under Section 18B of the Home Building Act 1989 ('the HB Act'). To determine this issue, the provisions of Section 18E of the HB Act, which pertain to the warranty period, must be considered; 2. If the Tribunal has jurisdiction in the matter, whether the applicants have established the builder breached Section 18B of the HB Act, and if so, what is the appropriate remedy; 3. If the Tribunal has jurisdiction in the matter, whether the Tribunal should grant an adjournment after determining the issue of jurisdiction, so that the applicants may obtain further expert evidence. 1. The proceedings were filed with the Tribunal on 15 April 2016. The applicants sought damages of $30,000.00. The application identifies the allegedly defective building work as follows: 1. Inadequate waterproofing of an upstairs balcony, resulting in water leaks into the downstairs lounge room and dining room; 2. Water leaking from the roof into the upstairs unsuited. The water leak from the roof is alleged to have also damaged the kitchen ceiling, causing cracks to the architraves and ceilings of the upstairs unsuited and downstairs kitchen; 3. Water leaking from the roof into the downstairs theatre room; 4. A crack in the kitchen benchtop due to inadequate installation. 1. The matter was before the Tribunal at a Group List and Conciliation Hearing on 6 May 2016. The applicants appeared and there was no appearance by the respondent. The Tribunal made directions regarding the filing and serving of documentary evidence by both parties, and granting the applicants leave to file and serve any amended application. The applicants' sought an extension to file and serve documentary evidence and any amended application, which was granted by the Deputy Divisional Registrar. 2. The applicants filed an amended application together with their supporting documentation, with the Tribunal on 10 June 2016. The amended application sought damages of $37,939.00 for the cost of rectification of "the leaking balcony and internal ceiling".