Bailey & Anor v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 | Case summary

Court of Appeal (NSW)|2011-08-25|Before: Basten JA, Meagher JA

Mr T Lynch with Ms M Delenec (First, Second and Third Respondents) Gibson Howlin Laywers (Applicants)

Baker McDonell (First, Second and Third Respondents) File Number(s): 2009/337193 Publication restriction: No Decision under appeal Date of Decision: 2010-04-13 00:00:00 Before: Hughes DCJ File Number(s): 2009/337193

Judgment 1BASTEN JA : The applicants, being respectively the developer of land and the builder of works undertaken on that land, were the respondents to claims for defective building work in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). They sought to have the Tribunal determine, as a preliminary issue, its jurisdiction to consider the claims. They asserted that the Tribunal lacked jurisdiction because, at least in relation to the claim brought by the Owners Corporation, it was a "building claim arising from a breach of a statutory warranty implied under Part 2C" of the Home Building Act 1989 (NSW) and was lodged more than seven years after the date on which the work was completed, for the purposes of s 48K(7)(a) of the Home Building Act . 2In order to succeed on that point, the applicants needed to establish two factual parameters, namely the date on which the claim was lodged (which was not contested) and the date on which the building work the subject of the claim was "completed". More precisely, they needed to establish that the work was completed more than seven years before the date of lodgement of the claim. 3The Tribunal expressed an opinion that the work had not in fact been completed by the critical date. Arguably it would have been sufficient for the Tribunal to conclude that it was not satisfied that the works were completed by that date. That would have been sufficient to dispose of the applicants' motion and would not have caused any difficulty for the Tribunal if, on hearing further evidence, a different finding might be preferred. In the course of argument in this Court, counsel for the applicants stated (Tcpt, 25/08/11, p 8 (10)): "That was the way we ran the appeal to the court below in that it was said that these things were outstanding after 10 April 2000 and we say there was no evidence to support that and no evidence to support the ultimate conclusion of [the] court below that the date which he assumed being 5 May 2000, he says an occupation certificate issued on that day, and we say there's no evidence as to that." 4These submissions were repeated in different ways. In part they appeared to be addressed to findings made by the District Court; in part to findings made by the Tribunal. As no grounds were articulated in these terms either in the appeal to the District Court, or on the application for judicial review of the judgment of that Court, it is not entirely clear how the issues were said to arise. Nevertheless, they revealed two underlying matters of some importance, which were not explored either. 5First, it was not in doubt that the issue as to "jurisdiction" involved matters of fact and, no doubt, matters of law (for example, as to the proper construction of the Home Building Act ). In the Tribunal, as counsel accepted, the applicants bore the onus of proof in relation to the facts required to establish a lack of jurisdiction: Tcpt, 25/08/11, pp 24-25. Accordingly, if the appeal taken to the District Court required them to establish error of law, a "no evidence" ground was not open to them: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 (Glass JA, Samuels JA agreeing). 6The second question was whether the appeal to the District Court required establishment of an error of law. Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act") permits an appeal where "the Tribunal decides a question with respect to a matter of law": s 67(1). However, sub-s (8) provides that "[a] reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal". The purpose and scope of s 67(8) was not explored, either in this Court or, it appears, in the District Court. In the District Court, that was because the applicants accepted that they needed to establish an error of law. However, it became relevant in respect of their proceedings in this Court which, in part, complained that the District Court "acted as a court of general review rather than confining itself to, and deciding the appeal in accordance with, the jurisdiction conferred by s 67(3) of the CTTT Act": applicants' written submissions, par 62. 7Section 67(3) of the CTTT Act confers certain powers on the court hearing the appeal where that court does not "affirm" the decision of the Tribunal. In this case, the District Court dismissed the appeal, thereby in effect affirming the decision of the Tribunal. Thus no issue arose in respect of the operation of s 67(3). 8However, an issue may have arisen as to the jurisdiction of the District Court in dealing with "a matter relating to the jurisdiction of the Tribunal". There is a large question as to whether the District Court was entitled (and, in an appropriate case, could be required) to review the findings of fact in the Tribunal or even make findings itself, in effect in the exercise of an original jurisdiction. 9Whether the District Court actually did make and rely upon its own findings of fact and whether that constituted a ground of challenge pressed in this Court, were both unclear from a reading of the transcript and the written submissions. Because the application to this Court should be dismissed, it is not necessary to resolve the scope of the appeal in the District Court where a matter relating to the jurisdiction of the Tribunal is raised. The assumption of the applicants as to the scope of the jurisdiction (being limited to error of law) may well be correct. As explained by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 391, in relation to the jurisdiction of magistrates: "It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." 10While the statement does not in terms apply to a specialist tribunal, nevertheless the underlying principle is as potent in this context as in relation to a magistrate's court. As explained by Sackville AJA, the jurisdictional issue, which in effect involved the operation of a limitation period, could not satisfactorily be decided without a consideration of the factual issues going to the merits of the claims. The undesirability of such matters being addressed as a preliminary question, thereby inviting an interlocutory appeal and possible review in this Court, must now be apparent. Where the Tribunal has been prevailed upon by one or both parties to engage in such a course, there should at least be an opportunity for the District Court, in the exercise of its appellate jurisdiction with respect to interlocutory decisions, to refuse leave to appeal. However, it does not appear that such a power presently exists. 11The application should be dismissed with costs, for the reasons given by Sackville AJA. 12MEAGHER JA : I agree with Sackville AJA. 13SACKVILLE AJA : This is an application for an order in the nature of certiorari quashing a decision of the District Court (Hughes DCJ) and remitting the proceedings for a rehearing conducted in accordance with law. The application is made under s 69 of the Supreme Court Act 1970 (" Supreme Court Act "). 14The District Court dismissed an appeal pursuant to s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (" CTTT Act ") against a decision of the Consumer, Trader and Tenancy Tribunal (Home Building Division) (" Tribunal "), constituted by Member P J Briggs. In that decision, the Tribunal rejected a challenge by the present applicants (together " the Baileys ") to the jurisdiction of the Tribunal to hear and determine a claim made by the first respondent (" Owners Corporation "). The claim by the Owners Corporation related to allegedly defective work carried out by the second applicant (" Bailey Pty Ltd ") at premises located in Yowie Bay (" Property "). 15The Owners Corporation relied on the statutory warranties implied by s 18B of the Home Building Act 1989 (" HB Act") in every contract to do residential building work. A person who is a successor in title to a person entitled to the benefit of a statutory warranty is entitled to the same benefits as the person's predecessor in title in respect of the statutory warranty: s 18D(1). The Owners Corporation claims to be the successor in title to the developer and thus entitled to enforce the statutory warranties against Bailey Pty Ltd. 16The Tribunal made the following order: "The Tribunal has jurisdiction to hear and determine the application of the Owners Corporation of SP 62666 made within 7 years of the date of completion of the work set out in Consent Orders No.10170 of 1998 in the Land and Environment Court of New South Wales." 17The reference in the order to " 7 years of the date of completion of the work " is explained by the terms of s 48K of the HB Act. Section 48K(1) provides that subject to monetary limits, the Tribunal has jurisdiction to hear and determine any " building claim ". However, s 48K(7) states as follows: "The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim was lodged is more than 7 years after: (a) the date on which the residential building work the subject of the claim was completed, or (b) ...". 18The issue presented to the Tribunal was whether the Owners Corporation's claim against the Baileys was lodged more than seven years after the date on which the residential building work was complete. The Tribunal found that the Owners Corporations claim was lodged on 11 April 2007 and that the work on all Property had not been completed until 5 May 2000. It followed that the Tribunal was not deprived by s 48K(7) of the HB Act of jurisdiction to hear the Owners Corporation's claim. 19The Baileys contend that the Tribunal's decision on jurisdiction involved errors of law. In particular, they submit that the Tribunal misconstrued the expression " residential building work " in s 48K(7) of the HB Act. They further contend that Hughes DCJ committed errors of law in failing to uphold the Baileys' appeal. On this basis they say they are entitled to relief in the nature of certiorari. 20There are four respondents to the Baileys' application in this Court. The Owners Corporation is the first respondent. The second and third respondents (together " the Proprietors ") are the registered proprietors of the lots within the Property that is the subject of the proceedings in the Tribunal. The District Court is the fourth respondent. The Court has not appeared, although it has not apparently filed a formal submitting appearance.

PROCEDURAL HISTORY 21The first applicant (" Mr Bailey ") was the developer of the Property and Bailey Pty Ltd was the builder. The Property comprised two apartments, each with a garden courtyard, together with common property. The second respondents (" the Watts ") were the registered proprietors of one apartment and the third respondents (" the Eastburns ") were the registered proprietors of the other apartment. 22On 5 and 6 December 2005, the Watts and the Eastburns filed separate applications in the Tribunal seeking orders against the Baileys to perform rectification work in respect of the Property. The defects alleged included concrete cancer allowing water to penetrate into a wall and balcony and structural cracking with associated water damage. 23On 12 January 2007, the Tribunal directed that both matters should be listed for a hearing together. 24On 11 April 2007, solicitors acting for the Owners Corporation and the Proprietors filed a statement of claim in the Tribunal. This document, which was filed without the Tribunal's leave, named the Owners Corporation as the first applicant and the Proprietors as the other applicants. The Baileys were named as respondents. The statement of claim sought the costs of rectification of defective building works and damages " for ancillary losses ". It was common ground before the District Court and is common ground in this Court that the filing of the statement of claim constituted the lodgement of a claim by the Owners Corporation for the purposes of s 48K(7) of the HB Act. 25The statement of claim pleaded that the works undertaken by Bailey Pty Ltd at the Property were " residential building works " as defined by the HB Act. It was alleged that the works were not carried out in a proper and workmanlike manner, in breach of the warranties implied into the building contract by s 18B of the HB Act. 26The particulars to the allegation asserted that the breaches related to both the individual units and the common property. Further details were said to be found in an expert report dated 5 April 2007. The statement of claim also pleaded that the Owners Corporation was authorised to act in relation to the common property on behalf of unit holders who purchased apartments from the original developer. 27On 27 March 2008, the Tribunal made orders, over the objections of the Baileys, that the Owners Corporation be joined as an applicant in each of the matters before the Tribunal. 28On 4 December 2008, the Baileys filed an amended defence in the Tribunal. The amended defence pleaded that the Tribunal did not have jurisdiction pursuant to s 48K of the HB Act in respect of any claim brought by the Owners Corporation. 29On 24 March 2009, the Tribunal directed that the proceedings be listed as soon as possible after 15 May 2009 " to determine the limitation issue ". 30The hearing of that issue took place on 8 July 2009. The Tribunal handed down its decision on 31 August 2009 and on that date made the order to which I have already referred. 31In its decision, the Tribunal found that the " only reliable evidence " as to the date of completion was the certification of the final inspection by Sutherland Shire Council (" the Council "), the consent authority, for the Property. Accordingly, the Tribunal found that the date the works were brought to completion was 5 May 2000, the date the Council issued the occupation certificate for the Property. Since this was within seven years of the filing of the statement of claim on 11 April 2007, s 48K(7) of the HB Act did not deprive the Tribunal of jurisdiction to hear and determine the Owners Corporation claim. 32On 18 September 2009, the Baileys filed an appeal in the District Court from the Tribunal's decision. Such an appeal is available under s 67(1) of the CTTT Act to a dissatisfied party if the Tribunal " decides a question with respect to a matter of law ". Section 67(8) provides that a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. 33The summons commencing the appeal identified three grounds, as follows: "1. The member erred in finding that [the Tribunal] had jurisdiction in relation to the [Owner's Corporation's] claim. 2. The Member erred in finding that the date on which the residential building work the subject of the [Owner's Corporation's] claim was completed was after 10 April 2007. 3. The Member erred in failing to have regard to [s 48K of the HB Act] when determining whether the Tribunal had jurisdiction to entertain the [Owner's Corporation's] claim." The Baileys sought orders setting aside the Tribunal's decision, removing the Owners Corporation as an applicant in the proceedings and determining that the Tribunal did not have jurisdiction in respect of the Owners Corporation's claim. 34The District Court appeal was heard on 13 April 2010. Hughes DCJ delivered an ex tempore judgment in which his Honour concluded that the Baileys had not demonstrated any error of law by the Tribunal. Accordingly, his Honour dismissed the appeal. 35On 18 September 2009, the Baileys filed what purported to be an appeal to this Court under s 127(1) of the District Court Act 1973 against the decision of the District Court. However, the Baileys subsequently accepted that this Court does not have jurisdiction to hear and determine an appeal from the decision of the District Court under s 127(1): Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46. Accordingly, orders were made at the hearing in this Court dismissing the purported appeal. 36The Baileys filed the summons seeking relief under s 69 of the Supreme Court Act on 6 December 2010. The summons is the only matter before this Court.

THE TRIBUNAL'S REASONS 37The Tribunal recorded that the Baileys' counsel had identified two questions for decision. As amended and corrected by Hughes DCJ, the questions were as follows: Question 1: Was the residential building work completed before 10 April 2000, being seven years and one day before the statement of claim purporting to join the Owners Corporation was filed? Question 2: If not, was the residential building work performed to the common property of the development on or after 11 April 2000, as opposed to the work performed on the Proprietors' apartments? 38It will be seen from these questions that there was no dispute before the Tribunal that if all residential building work had been completed more than seven years before the filing of the statement of claim, the Tribunal lacked jurisdiction to hear and determine the claim by the Owners Corporation. The absence of any such dispute reflects the uncompromising terms of s 48K(7) of the HB Act: cf Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369. 39The Tribunal noted that evidence had been given by Mr Watt and Ms Eastburn on behalf of the Owners Corporation. Mr David Bailey, Mr Bailey's son, gave evidence for the Baileys. 40Mr Watt said that he and his wife had taken possession of their apartment on 19 April 2000. He gave evidence that on that date certain work had not been completed. He described the work as: "Landscaping works to the garden. Landscaping works to the planter boxes on the second level. The external balustrades." 41The Tribunal member observed that there were conflicts in the evidence as to when particular work had been completed and that Mr David Bailey's recollection had been stimulated by reference to a diary which contained only " sparse " entries. 42The Tribunal member referred to a judgment of Elkaim DCJ in Abrahams v Degan [2009] NSWDC 315. In that case, his Honour had pointed out that reg 48 of the Home Building Regulation 1997 set out criteria for determining when residential building work was taken to be complete, for the purposes of ascertaining the duration of cover to be provided by an insurance contract. In the absence of a contractual stipulation, reg 48(1)(b) stated that the work was taken to be complete on the date of the final inspection of the work by the applicable council. 43Judge Elkaim accepted (at [16]) that reg 48 was expressed to apply only to insurance contracts. Nonetheless he took the view that the date of final inspection should be taken as the equivalent of completion in the absence of any provision in the contract. 44The Tribunal member observed that in the present case there was no documentary evidence as to the terms of the building contract between the developer and the builder, nor as to the scope of the works to be carried out. In these circumstances, it was necessary to imply a contract into which the statutory warranties under s 18B of the HB Act would also be implied. The Tribunal member noted that s 18B implied into every contract to do residential building work warranties that the work:

would be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract (s 18B(a)); and
would be done in accordance with the HB Act, and any other law (s 18B(c)). 45The Tribunal member referred to consent orders made in the Land and Environment Court on 15 July 1998 in proceedings between Mr Bailey and the Council. By those orders, Mr Bailey was granted a " deferred commencement " consent under s 91AA of the Environment Planning and Assessment Act 1979, subject to conditions. The conditions also required certification of certain works prior to Council's final inspection. 46The Tribunal member concluded as follows: "'Completion' is therefore conditional upon the fulfilment of the requirements of the statutory warranties as well as the particular conditions that apply to the development. Council, prior to final inspection requires the builder to provide evidence in the form of certification from various professionals that the objectives have been satisfied. The withdrawal of building tradespersons from the site of the works does not of itself signal compliance with the conditions of approval which are conditions precedent to the completion of the works as certified by the consent authority. I am of the view that the only reliable evidence, and I draw no inferences in respect of the evidence of Messrs Bailey and Watt or Mrs Eastburn, is the certification of the final inspection by Council." 47The evidence showed that the Council had conducted a number of " final inspections ". Inspections carried out on 22 February 2000 and 22 March 2000 noted that the works were " 99% complete ". An inspection on 5 April 2000 resulted in an " UNSAT " (unsatisfactory) notation and was accompanied by a list of outstanding and defective works. Two subsequent inspections recorded that all items requiring attention on the site had been completed. The Council issued the occupation certificate on 5 May 2000. The Tribunal member found that this was the date the works were brought to completion. He observed that the finding was consistent with the reasoning in Abrahams v Degan , to which he had given proper weight. 48The Tribunal answered the questions posed by counsel for the Baileys as follows: "Question (1) - No. the question is answered distinguishing s18E(1)(a) ' the completion of the work to which it relates' from ' the residential building work' which may be different work. Question (2) - Yes. I am satisfied that there was at least outstanding landscaping work to be completed after 10 April 2000. I do not accept that the outstanding work has to be work to the common property, my view is that incomplete work to any part of the development is sufficient to allow the answer in the affirmative, except of course if that work was commissioned by the [Proprietors] outside the arrangements between the developer and the builder." (Section 18E(1)(a) of the HB Act provides that proceedings for breach of a statutory warranty must be commenced within seven years after the " completion of the work to which it relates ".)

DISTRICT COURT JUDGMENT 49Hughes DCJ noted that the appeal to the District Court had been brought pursuant to s 67(1) of the CTTT Act and that an appeal was available only if the Tribunal had made a decision on " a question with respect to a matter of law ". This required the Tribunal to make a decision on something that arose or was in issue or debated in the proceedings, whether or not expressly referred to in the decision. In the present case, the question was whether the residential building work had been completed before 10 April 2000. His Honour did not refer to s 67(8) of the CTTT Act presumably because the Baileys did not rely on the provision. 50Hughes DCJ referred to the judgment of Elkaim DCJ in Abrahams v Degan and expressed the view that the reasoning, which had been followed by the Tribunal, displayed no error of law. 51Hughes DCJ expressed his conclusion in a manner, whether because of difficulties of transcription or otherwise, that is not easy to follow: "it is conceded by [the Baileys] that the certificate of final inspection by the council may be used as one of the matrix of facts surrounding such cases. In my view, [the Tribunal] was perfectly entitled, having considered the other evidence and the evidence particularly of Mrs [sic] Bailey, Watt or [Eastburn] in determining that you could not rely upon it and I have since been assured by counsel for [the Owners Corporation] that the builder himself did not give evidence. For whatever reason I can draw no inference from that that is favourable to [the Owners Corporation] (sic: the Baileys). In all those circumstances I am satisfied then that the [Baileys] have not demonstrated any error of law by the Tribunal member and that the matter should be remitted back to the [Tribunal]. I therefore dismiss the appeal."

The Jurisdictional Issue: Timing 52Section 48K(7)(a) of the HB Act imposes one of a number of limitations on the jurisdiction of the Tribunal to hear and determine " building claims ". (For other limitations see, for example, s 48K(7)(b), (8)). Some limitations on the jurisdiction of inferior courts and tribunals are inevitable and indeed essential if the rule of law is to be maintained: cf Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, at 573-574 [71]-[73], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, if the meaning of an express statutory limitation on jurisdiction is open to interpretation or if the application of the limitation gives rise to contested factual questions, the way may be open to prolonged disputation before the merits of a claim are addressed. 53The HB Act defines the expression " residential building work " (s 3(1)). But it does not provide guidance as to when residential building work, or work that is " the subject of the claim ", is taken to have been " completed ". Consequently, as this case demonstrates, there may be a contest both as to the meaning of the legislation and as to the facts that must be found in order to apply the statutory language. 54The Tribunal is intended to act with as little formality as the circumstances of the case permit and to act according to equity, good conscience and the substantial merits of the case (CTTT Act, s 28(3)). It is also to act as expeditiously as is practicable and to ensure, as far as practicable, that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts and issues (s 28(5)). 55A tribunal has jurisdiction to decide for itself whether the conditions necessary for it to hear and determine a dispute have been satisfied. Generally speaking, the tribunal's decision on such a question is not conclusive and may be challenged on appeal or on an application for judicial review: Mutual Life & Citizens' Assurance Co Ltd v Attorney-General (Qld) [1961] HCA 51; 106 CLR 48, at 56, per Dixon CJ (with whom Taylor and Windeyer JJ agreed); The Queen v Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190, at 202-203, per Barwick CJ; M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action , 4 th ed (2009) Thompson Reuters, at 804-805. However, if a jurisdictional issue is litigated as a preliminary issue in the Tribunal and full advantage is taken of the opportunities for appeal and judicial review, statutory objectives are likely to be frustrated. 56The Tribunal in the present case made a direction by consent that what it described as the " limitation issue " be the subject of a one day hearing, presumably as a preliminary issue. It is not clear whether the parties gave any consideration to the desirability of deferring the jurisdictional question, resting as it does on contested factual (as well as legal) questions, until the hearing of the claim itself. Such a course would have ensured or at least made it more likely that the jurisdictional question would be resolved with the benefit of all evidence in the case and in a manner that avoided prolonged interlocutory disputation. It is essentially for these reasons that the High Court has said that limitation questions that depend on findings as to when damage or loss was incurred should not be decided in advance of the final hearing except in the clearest of cases: Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514, at 533-534, per Mason CJ, Dawson, Gaudron and McHugh JJ; Hooker v Gilling [2007] NSWCA 99; 48 MVR 136, at [63], per McColl JA (with whom Ipp and Basten JJA agreed). 57The jurisdictional issue that the Tribunal had to confront was not strictly a limitation question, although the Tribunal's jurisdiction was dependent upon the claims being lodged within a specified period from the date the relevant residential building work was complete. The observations of Barwick CJ in R v Federal Court suggest that a court can postpone resolution of a jurisdictional issue until " the probable existence or non-existence of the fact or situation [determination of jurisdiction] has emerged ": at 206. It is true that Barwick CJ was speaking of proceedings in the High Court challenging the jurisdiction of the Federal Court to hear a matter. Nonetheless, in principle there is no reason why similar considerations should not influence an inferior court or tribunal required to consider a jurisdictional challenge. If the challenge is more conveniently dealt with when all the evidence has been adduced, the tribunal would be entitled to take that course, provided it does not make orders beyond jurisdiction in the meantime. 58The Tribunal in the present case did not have before it all material relevant to the jurisdictional issue. It is difficult to discern from the applications lodged by the Proprietors (who at that stage were unrepresented) and the statement of claim lodged on 11 April 2007 precisely what works were the subject of the claims. In consequence, it is not clear whether the complaints related to work on the common property or on one or both of the apartments. For reasons that have not been explained, the parties did not tender or otherwise place before the Tribunal the expert report that was said to particularise the breaches of the statutory warranties. Nor was that report before the District Court or this Court. 59Had resolution of the jurisdictional question been deferred until the final hearing or been considered more thoroughly by the parties, they may have adduced additional evidence or identified other issues relevant to the jurisdictional question. For example, it may be significant in the present case that there are only two apartments on the Property and that the registered proprietors of both are parties to the Tribunal proceedings. There is no doubt that the registered proprietor of each unit is a successor in title to the person originally entitled to the benefit of the statutory warranty (that is, Mr Bailey). As such, each registered proprietor can enforce the statutory warranty in relation to defective work directly affecting his or her unit: HB Act, s 18D(1). The Baileys' written submissions in this Court accept that the Proprietors brought their respective claims within the seven year period. 60It is arguable that the registered proprietors of each unit can enforce the statutory warranty in his or her own right even to the extent that the warranty relates to work on the common property. Whether this is so may depend on whether the registered proprietors' interest in the common property is such as to constitute him or her the " successor in title " for the purposes of s 18D(1) of the HB Act: see Strata Schemes (Freehold Development) Act 1973, ss 18(1), 20(b), 24; cf Vero Insurance Ltd v Owners of Strata Plan No 69352 [2011] NSWCA 138, at [67]. 61It is not necessary to consider this question further. The point is that the consent directions requiring the jurisdictional question to be determined separately may have contributed to some factual and legal issues not receiving the attention they deserved.

The Baileys' Challenge 62The Baileys' written submissions identified five grounds in which they sought relief under s 69 of the Supreme Court Act in relation to the decision of the District Court. One ground was not pressed. 63In oral argument in this Court Mr Loughnan, who appeared for the Baileys, seemed to accept that the four grounds could be consolidated into one. That ground was that Hughes DCJ failed to address an argument that was put to him by the Baileys and thus did not exercise the appellate jurisdiction conferred on him by s 67(1) and s 67(8) of the CTTT Act. Mr Loughnan put the same point in a slightly different way by characterising the failure to address the argument as an error of law that appears on the record of the District Court: Supreme Court Act, s 69(3), (4). 64According to Mr Loughnan, the argument advanced to Hughes DCJ and not addressed by his Honour was that the Tribunal had erred in law in finding that the jurisdictional test in s 48K(7) of the HB Act had been satisfied. In particular, it had been submitted to his Honour that the Tribunal had found that work other than " residential building work ", if incomplete at any time within seven years before the lodgement of a claim, could satisfy the test. His Honour had been invited to conclude that the Tribunal had erroneously decided a question with respect to a matter of law by finding that landscaping work, if not completed before 11 September 2000, warranted a conclusion that the Owners Corporation had satisfied the jurisdictional requirement stated in s 48K(7)(a) of the HB Act. 65Mr Loughnan also submitted to this Court that there was no evidence before the Tribunal to support a finding that residential building work on the Property was incomplete at 11 April 2000. Mr Loughnan acknowledged that an argument in these terms had not been put in the District Court. However, he seemed to suggest that if there was no evidence that residential building work was incomplete at 11 April 2000, the District Court had erred in law by not upholding the Baileys' appeal. 66Mr Loughnan was correct in his submission that Hughes DCJ was invited to find that the Tribunal had erred in deciding, as a matter of law, that work other than " residential building work " could satisfy the jurisdictional requirement in s 48K(2)(a) of the HB Act. Mr Loughnan was also correct to submit that Hughes DCJ did not address the argument. His Honour seems to have confined himself to dealing with a contention, apparently advanced in oral submissions in the District Court, that the Tribunal member had erroneously held, as a matter of law, that completion of the building work did not occur until the Council issued a certificate of final inspection. His Honour rejected this argument, apparently on the ground that the Tribunal member had not regarded himself as bound as a matter of law to make any such a finding and that in truth it was a finding of fact. 67There are, however, difficulties in the path of the Baileys obtaining relief in this Court. One difficulty is that it is by no means clear that the landscaping work that was incomplete on 11 April 2000 was not " residential building work " as defined in the HB Act. The definition in s 3 is relevantly as follows: " residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling." (Emphasis in original.) 68It appears that the parties did not address any argument to Hughes DCJ as to whether landscaping work in general, and the landscaping work that remained to be done in this case in particular, could be described as " work involved in ... the construction of a dwelling ". Nor was attention directed to the reg 5 of the Home Building Regulation 2004, which declares certain structures and improvements to form part of a dwelling when constructed for use in conjunction with a dwelling. Regulation 5 includes in this category, among other things, " driveways, paths and other paving ", " retaining walls ", " fences and gates " and " agricultural drainage designed ... to divert water away from the footings of a dwelling or a retaining wall ". 69It is arguable that landscaping work, even if it does not include the structures and improvements listed in reg 5, is work " involved in the construction of a dwelling ". Be that as it may, landscaping work which requires the construction of structures and improvements of the kind listed in reg 5 is plainly " residential building work " for the purposes of the HB Act. 70Mr Loughnan accepted that the Baileys bore the onus in the Tribunal of proving facts necessary to establish that it lacked jurisdiction to hear and determine the Owners Corporation's claims. In the absence of evidence as to the nature of the landscaping work which remained incomplete on 11 April 2000, it is uncertain whether that work included, for example, the construction of paths, paving, retaining walls or " agricultural drainage ". The Tribunal made no findings as to the nature of the landscaping work and this Court was not taken to any evidence before the Tribunal that provided details of the work that was still outstanding. However, the consent orders made by the Land and Environment Court (to which the Tribunal member referred) required plans to be prepared that included a drainage detention area and associated drainage lines. 71In this state of the evidence, it would seem that the Baileys were not able to demonstrate in the Tribunal that the landscaping work outstanding as at 11 April 2000 did not include " residential building work " within the meaning of s 48K(7)(a) of the HB Act. 72In any event, there was documentary evidence before the Tribunal which showed that on 11 April 2000 some residential building work remained to be completed on the Property. The Tribunal member referred in his decision to records produced by the Council which reported the results of inspections of the Property. The documentation included a fax dated 7 April 2000 (four days before the critical date) detailing " Final Inspection Issues ". The fax specified six matters requiring attention, as follows: "(1) Engineering certification required for the roof slab for both dwellings. (2) Engineering certification required for the retaining walls on site (all). (3) Please have the waterproofer clarify where he has provided membranes. (4) Smoke detectors to be rectified as discussed. (5) Ventilation to be rectified as discussed. (6) Gap between proposed brushwood fence - existing retaining wall to be infilled as discussed." Mr Loughnan accepted there was no evidence before the Tribunal that any of this work had been completed on or before 11 April 2000. 73A " Record of Conversation " dated 20 April 2000 recorded that work on the Property was not complete and that a number of matters still required attention. Most of the items related to the planting of trees or shrubs and the laying of turf. However, the document noted that the " northern brushwood fence " and " steps and path tiling along south side of building " were not complete. 74These documents make it quite clear that not all " residential building work " on the Property had been completed by 11 April 2000. At the very least, item 6 recorded in the fax of 7 April 2000 and the two items noted in the " Record of Conversation " of 20 April 2000 constitute " residential building work " within the definition in s 3(1) of the HB Act as supplemented by reg 5 of the HB Regulation. Other items of work recorded in those documents, such as the rectification of ventilation and of smoke detectors, also appear to come within the definition. 75Section 48K(7)(a) of the HB Act speaks of " the date on which the residential building work the subject of the claim was completed ". The fact that residential building work was not completed at the relevant date does not necessarily mean that the incomplete work was the " subject of the claim ". 76However, as Mr Loughnan acknowledged, the Baileys cannot derive any comfort from that expression, whatever its meaning. The particulars of the Owners Corporation's claim were not before the Tribunal, the District Court or this Court. It is therefore impossible to determine whether the incomplete residential building work was the subject of the Owners Corporation's claim. As the Baileys accepted, they bore the burden of establishing that the Tribunal lacked jurisdiction to hear and determine the Owners Corporation's claim. 77It follows from what I have said that the Tribunal correctly concluded that on the evidence it had jurisdiction to hear and determine the Owners Corporation's claim, albeit not for the reasons it gave. Although the District Court erred in not addressing arguments advanced by the Baileys, it was nonetheless correct to dismiss the appeal. In these circumstances, it is inappropriate to grant the Baileys the relief they seek in relation to the orders of the District Court. 78The application must be dismissed, with costs.

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Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Bailey & Anor v Owners Corporation of Strata Plan 62666

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