Colin Charles Goodacre and Yvonne Sylvia Goodacre v Trinder Alpine Constructions Pty Ltd

NCAT Consumer and Commercial|2013-10-21|Before: Section J

Background 1The applicants as owners (the homeowners) and the respondent as builder (the builder) entered into a contract for the construction by the builder of a mixed-use development at Bega Street, Tathra, New South Wales. The contract was entered into a 19 September 2008. The contract price was $539,550.00. A dispute arose between the parties: the owners claimed damages of $101,618.06 with regard to the builder's breach of statutory warranties under s 18B of the Home Building Act 1989 (NSW). The builder claimed variations totalling $43,564.80 and payment of balance of the deposit in the sum of $14,837.62. 2That dispute was heard by the Consumer Trader & Tenancy Tribunal, Home Building Division in March 2012. The decision in the matter was handed down on 26 February 2013 and amended on 10 April 2013.

The current claim 3On 26 September 2013 the homeowners filed an application in the General Division of the Consumer, Trader & Tenancy Tribunal as follows: [The] Senior Tribunal Member ruled in HB 11/11460 and HB 11/40319 that he had no jurisdiction for the ground floor - 26 February 2013. Trinder Alpine Constructions and the Homeowner had an ABIC SW-1 simple works contract. Further remediation works are required, which include: (1)provision of toned double glazing to all external ground floor doors; (2)rectification of ground floor sliding door sub-sill; (3)convert ground floor inside sliding door to outside sliding door; (4)provision of double-glazing and toning to awning window to meet Section J of the Building Code of Australia; (5)replacement of window louvre glass with single glazed toughened tone glass; Items 1 to 5 $27,178.00 - Senior Tribunal Member's ruling 26 February 2013 (6)replacement of pressure pump and pipework to contract specifications; (7)replacement of water damage to pump housing door; (8)replacement of 10 corroded outside downlights with contract specified lights - 17 April 2013; (9)replacement of LED transformer to strip LED lights; (10)repair 2 Delta strip fluorescent lights; Items 9 to 10 - $545.00; (11)Fix top of shower screen to ceiling - $140.00 Senior Tribunal Member's ruling of 26 February 2013 (12)non-validity of termite management certificate - 13 September 2013. 4This matter was listed in the Conciliation and Hearing (Group List) at Bega for 21 October 2013. The homeowners appeared in person; the builder did not appear, however Mr Herbert, solicitor was present. The matter was adjourned and parties were directed to provide to the other party and to the Tribunal a copy of all documents on which they intended to rely. 5The applicants filed some 144 pages of information. This was not a complete compilation of documents upon which they intended to rely. The submission referred the Tribunal to the previous home building case and 5 folders of documents relating to that earlier matter. Some of the documents were nevertheless duplicates of other evidence supplied in that matter, others were new evidence. 6The respondent subsequently made an application to be represented by Mr Herbert. The Tribunal refused that application. 7The matter was listed the hearing on 13 January 2014. At that hearing the homeowners stated that their claim was made under the Consumer Claims Act 1998 (NSW). The homeowners submitted that pursuant to the definition contained in the Consumer Claims Act they were natural persons who had, pursuant to a contract, been supplied by the respondent with goods and services. The contract was for the construction of a multi-purpose building and this claim related to that part of the building which was not to be used for residential purposes. 8The applicants' claim was said to be based on a breach of the consumer warranty that where there is a contract for the supply of services, the serviceswill be performed with due care and skill and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied. [Trade Practices Act 1974 (Cth) s 74; Fair Trading Act 1987(NSW) s 40S9 as at 1 April 2010)]. The Tribunal notes that at individual items of the claim warranties relating to correspondence with description and express manufacturer's warranties are also canvassed. 9The Consumer Claims Act requires that claims be commenced within 3 years from the time the cause of action arose, and in any event within 10 years of the date of supply of the goods and services to which the claim relates. [s 7(4)] 10The time limit was raised by the Tribunal and the parties were directed to file submissions addressing the effect of s 7(4)(a) of the Consumer Claims Act. The applicants were specifically directed that the submissions must address each individual claim made by the applicant and in relation to each claim set out the time at which the cause of action is alleged to have arisen; and reveal whether the claim was made in the previous Home Building proceedings; and if so provide information as to how that claim was determined by the Tribunal. 11The respondent was to provide a written response to each of the submissions made by the applicant. The applicants filed a further bundle of documents, the majority of which appear to be evidentiary rather than submissions in relation to the question of the time limitation. 12The applicants in their submission refer to s 7 of the Consumer Claims Act; s 14 of the Limitation Act 1969 (NSW) and s 81 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The applicants assert generally that the cause of action first accrued when the builder lodged his final account in January 2011. The applicants state that on receipt of these invoices they caused their solicitor to forward to the builder's solicitor a list of defects in items that were not completed in accordance with the contract. It is noted however that different dates are provided in the detailed submissions in relation to each of the individual items claimed. 13The applicants submit that they have been disadvantaged by the length of time taken by the Tribunal to reach a decision in the earlier Home Building matter. The applicants submit that the Tribunal ought to have transferred the matter to the General Division of the Consumer, Trader and Tenancy Tribunal (CTTT). 14The applicants' submissions do not set out further reasons why the applicants believe that the Tribunal has jurisdiction to hear a further application in relation to matters dealt with in previous matters; nor provide any further argument as to why the Tribunal ought to exercise its discretion to allow these matters and new claims to be dealt with out of time. The applicant submissions consist primarily of evidentiary material. 15The respondent made submissions in the following terms: "the current proceedings consist mostly of an attempt by the applicants to bring back before the Tribunal those elements of the previous proceedings in which the applicants failed before the Tribunal... All of the work which the applicants alleged to be defective was performed pursuant to the building contract dated 19 and September 2008. The Tribunal has already determined that the building work was completed on or before 25 January 2010 .Pursuant to Section 7(4) of the Consumer Claims Act 1998 the Tribunal does not have jurisdiction to hear and determine a consumer claim if the cause of action giving rise to the claim first accrued more than three years before the date on which the claim is lodged. The tribunal therefore lacks jurisdiction to determine any of the applicants' claims in the current proceedings in its General Division."

The items claimed 16The Tribunal examines each of the 12 claims made by the applicants for the purpose of determining when the cause of action arose; whether that cause of action first accrued more than three years before the date on which the claim was lodged (26 September 2013); and if so whether the Tribunal ought to extend the period of time for the making and hearing of the application pursuant to s 81 of the Consumer, Trader and Tenancy Tribunal Act. The Tribunal notes that a similar discretion is now contained in s 41 of the Civil and Administrative Act 2013 (NSW). 17The first question which arises for determination by the Tribunal is when, as a matter of fact, the cause of action in relation to each item detailed in the application giving rise to the claim accrued. If in relation to any item claimed the Tribunal determines that the cause of action was outside of the limitation period then the second issue is whether the Tribunal ought to exercise its discretion in favour of the applicant to, nevertheless allow the claim to be made. 18The Consumer Claims Act provides at s 7 that the Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part ... except as otherwise provided by this section; s 7 (4) provides that: The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. 19Cause of action "means every facet which it will be necessary for the plaintiff to prove ... in order to support his right to judgment of the court" (Read v Brown (1882) 22 QBD 128 at 131). In contract the cause of action is said to arise at the date of breach of the contract. In tort, the cause of action in negligence is said to arise at the time the damage is discovered. In some cases where the cause of action arises under a statute, that statute may define when the cause of action first accrues. 20The claim brought by the applicants is brought under the Consumer Claims Act. The Tribunal has in previous cases taken the view that the cause of action accrues when the goods are supplied to the applicant. See Grange Building Company Pty Ltd v Australian Ironwood Antique Timbers Pty Ltd (General) [2012] NSWCTTT 11 (6 January 2012). 21These are statutory guarantees. The breach of a consumer guarantee gives rise to statutory rights and statutory causes of action. Those rights and causes of action do not depend solely on contract. The Consumer Claims Act 1998 was amended by the Consumer Claims Amendment Act 2007 (NSW). In relation to the amendment which introduced s7(4) Ms Linda Burney (Minister for Fair Trading) said in her explanatory speech: "Another jurisdictional issue raised in the review related to the time limit for commencing action under the Act. Currently the tribunal has jurisdiction where a claim is lodged within three years of the date the goods or services were supplied or meant to be supplied. However, in some cases, goods are supplied with warranties of longer than three years, which means the provisions of the Act may prevent a consumer from enforcing a warranty. To address this issue, the bill changes the time for commencing action to three years from the date when the cause of action accrues, that is, when the problem arises. This will mean that a consumer who wishes to lodge a claim relating to a broken washing machine, for example, will have three years to do so after the machine breaks. It is also necessary to contain the time period for lodging an application, as it would not be reasonable to allow claims to be made over an indefinite period. The bill accordingly provides that action must be commenced within 10 years of the date of supply. This is consistent with section 75AO of the Trade Practices Act 1974 concerning the liability of manufacturers and importers of defective goods. That provision requires action to be commenced within three years of the claimant becoming aware of the problem, but at any rate within 10 years of supply. [Hansard 7 Nov 2007] " 22Thus a consumer must commence an action under the Consumer Claims Act 1998 within three years of becoming aware of the problem which arises from the breach of the consumer guarantee and no later than 10 years from the date of purchase. 23With regards to the first issue for the Tribunal to determine, in this application, the homeowners must satisfy the Tribunal that the cause of action in relation to each of the items in the claim lodged on 26 September 2013 arose no earlier than 26 September 2010.

Did the cause of action arise before 26 September 2010? 24The Tribunal deals with each item in the homeowners' application to determine when the cause of action first accrued. The evidence as to the date of complaint by the consumers/homeowners is unless otherwise indicated taken from the submissions filed by the homeowners. (1)Provision of toned double glazing to all external ground floor doors. This was contained in the list of defects provided by the applicant to the respondent on 1 April 2010. The cause of action must have first accrued on or before 1 April 2010. (2)Rectification of ground floor sliding door sub-sill. This was contained in the list of defects provided by the applicant to the respondent on 1 April 2010. The cause of action must have first accrued on or before 1 April 2010. (3)Convert ground floor inside sliding door to outside sliding door. In February 2010 the homeowners advised the architect of this issue. The cause of action must have first accrued on or before February 2010. (4)Provision of double-glazing and toning to awning window to meet Section J of the Building Code of Australia. In February 2010 the homeowners advised the architect of this issue. The cause of action must have first accrued on or before February 2010. (5)Replacement of window louvre glass with single glazed toughened tone glass. The homeowners' submission states that the louvres were inspected in October 2010 and found to be defective. This is contradicted by the evidence supplied elsewhere in their submission, namely the defects letter dated 1 April 2010, where it I noted that 'only single laminated used for ground floor single hinged doors and all louvres. The cause of action must have first accrued on or before 1 April 2010. (6)Replacement of pressure pump and pipework to contract specifications. This was contained in the list of defects provided by the applicant to the respondent on 1 April 2010. The cause of action must have first accrued on or before 1 April 2010. The homeowners submissions seek to adduce "new" evidence that the pump has further disintegrated in January 2014. However they state that this is as a result of the incorrect installation which occurred originally and which was referred to in the defects list in April 2010. (7)Replacement of water damaged pump housing door. The homeowners state in their submissions that the cause of action arose in December 2010. There is no supporting evidence or argument made as to why this is the date when the cause of action first arose. Undated photographs show the warping and steady deterioration of the door. These do not assist the Tribunal to determine whether December 2010 is the date at which the cause of action arose. (8)Replacement of 10 corroded outside downlights with contract specified lights. The Applicants' submission is based on breach of the warranty in relation to a supply by description; and appears to bear an application for an order that the downlights supplied and installed at some time before the end of July 2010. If the claim is for a breach of the warranty that the goods would answer the description, and assuming for arguments sake that these lights fail to answer the description applied in the contract, the cause of action arose at the time of supply and installation. The applicants submit that the cause of action arose in January 2013 but offer no explanation or argument to support this assertion. (9)Replacement of LED transformer to strip LED lights. The Applicants submit that cause of action in relation to this claim arose in June 2011 but offer no explanation or argument to support this assertion. The basis of the claim is not clear in the application. The strip lights were installed in late 2009. The complaint appears to be that the LED lights blink continually and that a replacement transformer is necessary. The lights were installed in late 2009 and the cause of action arose at the time of supply and installation. (10)Repair 2 Delta strip fluorescent lights. These lights were installed in late 2009. The complaint appears to be that the lights are not working effectively and did not produce sufficient light. The applicants assert that the cause of action arose in June 2011, without providing any evidence or argument to support that assertion. The applicants state that on 17 April 2013 they drew the defects so the respondent's attention. The cause of action arose some time before the end of 2009. (11)Fix top of shower screen to ceiling - $140.00 Senior Tribunal Member's ruling of 26 February 2013. The Applicants submit that the cause of action arose in October 2010, again no evidence or information is provided to support this assertion. The claim appears to relate to inadequate installation by the builder; which relates to the manner of fixing and support of glass panels. This would have been evident upon the completion of the installation. The building work was completed on or before the 25 January 2010, and the cause of action arose at the latest on 25 January 2010. (12)Non-validity of termite management certificate. It is not clear from the application whether this is a complaint relating to the invalidity or nonexistence of termite management certificate, or a failure of the termite management system installed during the construction work. The applicants assert that the cause of action arose on 13 September 2013, again no evidence or information is provided to support this assertion. This matter was dealt with in the earlier CTTT decision and the applicants state later in their application under the heading Table of costings "Termite Management System: notwithstanding that the builder was responsible for the installation of the termite barrier, the applicant says that this issue needs to be taken up with Finns Pest Control and/or the appropriate authorities." The Tribunal is of the view that the cause of action arose on or before 25 January 2010. 25Based on the applicants' submissions and evidence contained in the folder prepared for this matter, the Tribunal is satisfied that in relation to each of the 12 claims outlined by the Applicants, the application is made more than three years since the cause of action arose. It appears from the submissions that the dates put forward by the applicants are not supported by the evidence, and at least in some instances appear to have been arrived at only to attempt to bring the claim within time. The Tribunal notes the finding in Goodacre v Trinder Alpine Constructions Pty Ltd (Home Building) [2013] NSWCTTT 87 (26 February 2013) that the date of practical completion of the building work pursuant to the contract was 25 January 2010 [at paragraph 62]. Further the applicants, despite the large volume of submissions have not made clear the basis of each particular claim, exactly described the defect or fault complained or provided important information such as the date of the reports from which they provide extracts.

Should the Tribunal exercise its discretion to allow the claims to be made out of time? 26The Tribunal may extend the period of time for the doing of anything under any Act in respect of which the Tribunal has jurisdiction; parties may make an application for an extension of time even though the relevant period of time has expired. [s 81 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW); s 41 Civil and Administrative Tribunal Act 2013 (NSW)]. The legislation does not provide any criteria for exercise of the discretion to extend the time for making an application. 27In determining whether to grant the extension of time for making of an application to the Tribunal, the Tribunal must take into account a number of relevant factors. Relevant factors include the length of the delay and whether a satisfactory explanation is given for the delay, the merits of the substantive application and whether there is prejudice to the other party in defending the substantive application. See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (5 July 1984); Swenson v Assistant Commissioner Les Hopkins [2014] QCAT 37 (28 January 2014). The Tribunal may also consider whether the respondent was entitled to assume that the matter was finalised, Mulholland v Australian Electoral Commission [2014] FCA 136 (26 February 2014). The overriding criterion is a consideration of what would best serve the interests of justice. The Tribunal should not grant an extension of time unless positively satisfied that it is proper to do so. The prima facie rule is that applications should be brought within the time set out in the legislation. 28Is there an acceptable explanation for the delay? The applicants contend that the delay in commencing the Consumer Claim was largely caused by the length of time that the CTTT Member took to hand down his decision. That matter was heard and 13, 14 and 29 March 2012; the decision was published on 26 February 2013. A significant finding by the CTTT Member was that the CTTT lacked jurisdiction to deal with those areas of complaint which did not fall under the Home Building Act 1989. The application made and dealt with in HB 11/11460 and HB 11/40319 by the CTTT contained a number of the complaints now brought in this matter. The applicants provided no explanation for the delay in the period of February 2013 to September 2013 when this application was made. 29The Tribunal notes that the homeowners were legally represented in relation to the original matters heard by the CTTT. The Tribunal further notes that the builder made submissions to the CTTT that the Tribunal did not have open "jurisdiction to deal with any complaints relating to building work that is solely concerned with the non-dwelling part of the premises'". [Goodacre v Trinder Alpine Constructions Pty Ltd, paragraph10]. In those circumstances, the homeowners ought not to have been caught unawares by the eventual decision of the CTTT that it did not have jurisdiction to deal with defects within the ground floor of the premises. The homeowners in relation to this consideration state: "In the Home Building claim against the builder the Tribunal member stated that he had no jurisdiction for the ground floor (commercial area). However, under the Consumer Trader and Tenancy Tribunal Act 2001 - Sect 22 and Sect 23, the Tribunal member can transfer a matter to Court or other Tribunal that has jurisdiction in the matter. The Tribunal Member took a year to make a reserved finding that he considered he did not have jurisdiction for the ground floor, and did not attempt to transfer the matter to a tribunal that he considered did have jurisdiction, notwithstanding the jurisdiction issue was not brought up by the builder's solicitor until his last submission. ... The length of time the Tribunal Member took to make his findings has prolonged the difficulties experienced by the applicant in regard to the major defects of the downstairs commercial area, and the 'out of time' conclusion made by the builder's solicitor. 30There is nothing contained in either the homeowners' submissions nor the decision of the CTTT to indicate that the homeowners at any time requested a transfer of the matter to Court or Tribunal with jurisdiction in relation to the complaints, nor that they made any application for the consumer complaint matter and home building matter to be heard concurrently. The homeowners have failed to provide an acceptable explanation for the delay in commencing the consumer claim application. 31A consumer claim application made to the Tribunal must be in relation to matters that have not been considered and decided in previous litigation. The consumer claim must not be a review of the earlier decision. This tribunal is not bound by the decision of the CTTT. However, the Tribunal agrees with and adopts the approach of the CTTT Member in relation to arguments previously ventilated. The CTTT formed the view that where the owners' submission was an argument ventilated by the owners in an earlier application brought by them against their architect, see Goodacre v Michael Marshman & Associates Pty Ltd (General) [2010] NSWCTTT 611 (17 December 2010), it was accepted that the CTTT was not bound by this decision, but that it should be given as a matter of judicial comity. 32The respondent builder submits: "Although the previous proceedings were brought in the Tribunal's Home Building Division, pursuant to the jurisdiction granted to the Tribunal by the Home Building Act 1989, all of the claims alleged breaches by the builder of the statutory warranties provided for[ in that Act], by reason of the building work being defective. Although the claims brought by the applicants in the current proceedings are brought in the tribunal's General Division, they still allege that the applicants are entitled to relief, by way of rectification work, for defective building work. For claims arising from work which the Tribunal has already determined was not defective, the Tribunal has no jurisdiction to effectively review its own determinations, even where a new application alleging the same defects is brought in a different Division of the Tribunal to the earlier applications." 33The Tribunal takes into consideration the evidence and tenor of the claims submitted by the homeowners, and refers to the decision of the CTTT. 34The applicants have not supplied sufficient information for the Tribunal to determine whether as submitted by the respondent, the following claims, or identical complaints in relation to the residential part of the building, have already been dealt with in the CTTT: (1)double glazing of all external ground floor doors. 35A reading of the decision of the CTTT indicates that the following claims, or identical claims in relation to the residential part of the building were dealt with in the decision of the CTTT: (1)the CTTT was satisfied that there was no defect in the louvre window glass; (2)CTTT determined that the pressure pump and pipework was installed in accordance with the contract and there were no defects in that work; (3)CTTT determined that the sliding door sub-sill had been incorrectly installed; (4)CTTT determined that the installation of an identical shower screen on the first floor of the premises was not defective; and the CTTT considered and rejected the claim in relation to the non-validity of the termite management certificate. 36The majority of the homeowners' claims in the present application were already known to the builder as they were ventilated in previous litigation. Therefore there is no substantial prejudice to the builder in defending the consumer claim. The lack of prejudice is not a matter that by itself determines the issue, but is a factor to be weighed by the tribunal in the exercise of its discretion. 37The homeowners' claim indicates that a number of their complaints concern manufacturer's warranties, breach by the builder of express terms of the contract or failure to comply with express warranties given by either the architect or the manufacturer. For example in relation to the strip lights the homeowners state that the scope of work indicates a warranty of 10 years and refers to a page in an undated and unidentified document, but which appears to be the Scope of Work prepared by their architect as the basis of this warranty. Thus there may be prejudice to the builder in defending a claim which appears at least to be partly based upon the conduct of the architect, conduct which has already been dealt with in earlier litigation. 38The dispute in relation to the building has a long history. There have already been two matters before the CTTT: the homeowners' claim against their architect in 2010, and the home building application in 2012 - 13. The homeowners were aware of the majority of the defects now subject of this consumer claim, they have not prosecuted the consumer claim within the time limits are set out by the legislation, some of the items in the current application have already been dealt with. The builder, upon the handing down of the decision in the home building matter by the CTTT in February 2013, and the passing of a period of six months, and in the circumstances where the date of practical completion was 25 January 2010, would be reasonably entitled to assume that the matter was finalised. 39The Tribunal is not able to determine, based on the evidence supplied by the homeowners, that all or any of their claims have a reasonable chance of success. The merits of the substantive claim is not a matter which by itself determines the issue of whether an extension of time should be granted, and is only one factor to be weighed by the Tribunal. In this particular matter the Tribunal has placed little weight on the likelihood of success or failure of the substantive claim. 40The Tribunal has considered carefully the detailed submissions of the homeowners and the response from the builder: any omission to refer to specific items of evidence should not give rise to an assumption that it is not been considered, but is reflective of the reasonable need for brevity and clarity in decision writing and takes into account that the Tribunal is determining whether to exercise a discretion to extend the time for the making of an application. The Tribunal takes into account the matters discussed above, and particularly notes: (1)that the homeowners have not provided an acceptable explanation for the delay in bringing this application; (2)that some of the claims require the Tribunal to effectively review the decision of the CTTT; and (3)that the builder, in all the circumstances, was reasonably entitled to consider the dispute to be finalised. 41The Tribunal Is not positively satisfied that it is proper in all the circumstances to exercise its discretion to allow this matter to proceed outside of the time limits provided for in s 7(4)(a) of the Consumer Claims Act. J Lennard General Member New South Wales Civil and Administrative Tribunal 8 May 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2014

Consumer Claims Act 1998(NSW)

Consumer Claims Amendment Act 2007(NSW)

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Trade Practices Act 1974(Cth)

Practices Act 1974(Cth)s 74

Civil and Administrative Act 2013(NSW)

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