Gregorio v Cheadle [2018] NSWCATAP 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gregorio v Cheadle [2018] NSWCATAP 118 Hearing dates: 08 March 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member F Corsaro SC, Senior Member Decision: (1) The appeal is allowed and the orders made by the Tribunal on 1 November 2017 are set aside.

(2) The proceedings are remitted for rehearing by the Tribunal to be determined in accordance with these reasons and according to law.

(3) Subject to order (4), the second respondent is to pay the costs of the appellants in this appeal, such costs to be as agreed or assessed under the relevant cost legislation.

(4) If any party contends for a different costs order, such application (including submissions and evidence) must be filed and served within 7 days from the date of these orders. The respondent to the costs application is to file and serve submissions and evidence in reply within 14 days from the date of these orders. The applicant for costs may file and serve submissions in response 7 days thereafter. Submissions must include submissions about whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW).

(5) In the event an application is made under order (4), order (3) shall cease to have effect. Catchwords: HOME BUILDING ACT – Statutory construction – s 18E proceedings for breach of statutory warranty – limitation period for bringing claim by a successor in title against owner builder – effect of amendment on limitation period – nature of right of successor in title under section 18C of the Home Building Act to bring proceedings for breach of statutory warranties. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Home Building Amendment Act 2011 (NSW) Home Building Amendment Act 2014 (NSW) Home Building Amendments (Insurance) Act 2002 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Allianz v Waterbrook [2009] NSWCA 22 Anthony Horden & Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1943) 47 CLR 1 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 Construction Forestry & Mining Energy Union v Hadgkiss [2007] FCFCA 197; (2007) 169 FCR 15; 248 ALR 169 Karan v Champion Homes Sales Pty Ltd [2016] NSWCATCD 84 Kraljevich v. Lake View & Star Ltd [1945] HCA 29; (1945) 70 CLR 647 Lam v Steve Jarven Motors Pty Ltd [2016] NSWCATAP 186 Leung v Alexakis [2018] NSWCATAP 11 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Maybury v Plowman (1913) 16 CLR 468 Minister of Immigration and Indigenous Affairs v Nystrom [2006] HCA 50; [2006] 228 CLR 566 Owners Corporation SP 79417 v Trajevski [2017] NSWCATAP 101 Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 37 Owners Corporation Strata Plan 64757 v MJA Group Pty Ltd [2011] NSWCA 236 Owners Corporation Strata Plan 78465 v MD Constructions Pty Ltd (2016) NSWSC 162 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Seller [2013] NSWCCA 42 The Owners Strata Plan No 66375 v Suncorp Metway Insurance Ltd (No 2) [2017] NSWSC 739 Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595; [1995] HCA 5 Category: Principal judgment Parties: Richard Gregorio (First Appellant) Lisa Diane Gregorio (Second Appellant) Robert Alexander Cheadle (First Respondent) Robbie Gai Cheadle (Second Respondent) Representation: Counsel: J Drummond (Appellants) G Carolan (Respondents)