The applicant submits that the respondent seeks an order of dismissal in circumstances where:
1. the applicant was not legally represented at the commencement of proceedings;
2. the applicant was not legally represented when he prepared his evidence. (I pause here to note that that submission is not correct; he was legally represented at the time he filed his second affidavit);
3. all correspondence between the applicant and the respondent's legal representatives went to the substance of a defects claim, and the coordination of a joint expert conclave;
4. on the date the matter was listed for hearing, the respondent raised for the first time preliminary issues requiring determination, including:
1. whether or not the applicant had a 'valid' cause of action;
2. whether the Tribunal had jurisdiction to hear a claim for negligence;
1. in accordance with the directions of the Tribunal, the applicant filed points of claim which refined the claim to two recognised causes of action, namely:
1. breach of a contract for residential building work, and
2. a claim as a successor in title under 18C of the HB Act;
1. the applicant has not since had any opportunity to file additional evidence to address each material fact pleaded in the points of claim.
[2]
Response to oral contract submissions
The applicant submits that the fact his evidence the evidence does not address this cause of action "is readily understood" when it is recognised that the applicant is not legally trained and was self-represented at the time he prepared his evidence. He says that his claim can only be said to be misconceived or lack substance if he is denied the opportunity to present further evidence, and that the Tribunal has an obligation to ensure that all relevant material is disclosed so at to enable it to determine all relevant facts in issue in the proceedings.
[3]
Response to transfer of title submissions
The applicant submits that the respondent's submission ignores that a joint tenancy can be severed under both the general law and in equity. He submits that it is possible that a joint tenancy is severed where an intimate relationship comes to an end and the parties choose to informally divide their assets: Scott v Scott [2009] NSWSC 567 at [102]. It will be submitted at the hearing that this is such a case.
[4]
Response to "not a building claim" submissions
The applicant notes that the respondent has submitted that the claim advanced by the applicant does not fall within the definition of a 'building claim' and the Tribunal accordingly lacks jurisdiction to determine the claim. He submits that this turns on the application of an exclusion to the definition of 'residential building work found at cl 3(i)(ii) of Schedule 1 of the HB Act. The respondent contends that the exclusion applies because the respondent did not receive valuable consideration for her role as owner-builder permit holder in respect of the works.
Whether or not that exclusion applies, the respondent submits, involves a finding of fact.
[5]
Respondent's further submissions
The respondent submits that:
1. if the Applicant cannot establish that the Respondent was not 'supervising owner-builder work for no reward or other consideration', there is no jurisdiction;
2. the Tribunal can make this determination by taking the Applicant's pleaded case at its highest. Paragraph 6 of the Points of Claim pleads the asserted consideration. The applicant subsequently confirmed in response to a specific request for further and better particulars on this point that the asserted consideration was confined to the matters set out in that paragraph. Further, the applicant's solicitor has previously stated that the applicant's September affidavit constitutes sufficient evidence for the purposes of establishing the asserted oral contract;
3. neither the pleadings nor the evidence served could permit the Tribunal to conclude that the Respondent received 'reward or other consideration' for supervising the owner builder work;
4. in any event, even if the applicant adduces further evidence of an increase in value of the property constituting 'reward or other consideration', such reward or other consideration needs to flow in response to the actual supervision by the respondent under the owner-builder licence. An increase in the value of the property co-owned by the respondent and the applicant flows from respondent's capacity as an owner. It does not flow as reward for the respondent holding an owner-builder permit. Such an interpretation would render the inclusion of the exclusion within cl 2(3)(i)(ii) of the HB Act superfluous.
[6]
Consideration
As to the oral contract point, the applicant concedes that he has filed no evidence on the issue, and seeks approximately four weeks from 17 January 2023 in which to do so.
In other words, as this claim currently stands, the claim must fail.
The applicant has now belatedly pleaded a case (in response to the respondent's criticisms) which was not supported by evidence. The affidavits relied on by the applicant are summarised above. The first was drafted without the benefit of legal assistance. But the second was. No reference at all is made to an alleged oral contract. That was the evidence that the applicant was going to rely on at the final hearing listed for 16 November 2022, and what the respondent was prepared to meet.
The same analysis applies to the "building claim" submissions. The applicant asserts that ultimately this is a question of fact, the fact to be determined being whether or not the respondent being a person supervising owner-builder work received no reward or other consideration.
Again, the applicant seeks time in which to file evidence on this issue. Accordingly, as this claim currently stands, the claim must fail.
That leaves the "successor in title" point. That can be determined in the absence of evidence, but this claim depends on the availability of a valid "building claim", the successor in title provisions being found in the HB Act.
As noted, the respondent submitted that the primary application fails "at the first hurdle". I agree. On the basis of the filed evidence, this is not a building claim, and I decline to allow the applicant time to file the evidence to "strap up" his case now.
[7]
Conclusion
The primary application should be dismissed on the basis that it is misconceived or lacking in substance.
I propose to order the applicant to pay the respondent's costs, including the reserved costs of 16 November 2022.
If either party seeks some other order, they should file submissions within 7 days, with the other party responding within a further 7 days.
I propose to deal with any costs application on the papers and without a hearing. If either party opposes that course, they should address that issue in their submissions.
[8]
Orders
The Tribunal orders that:
1. The applicant's application to adjourn the proceedings and to file further evidence is refused.
2. The proceedings are dismissed.
3. If either party seeks a costs order other than the applicant pay the respondent's costs of the proceedings, including the reserved costs of 16 November 2022, they should file submissions within 14 days of publication of these reasons, with the other party responding within a further 14 days. The Tribunal proposes to deal with any costs application on the papers and without a hearing. If either party opposes that course, they should address that issue in their submissions.
[9]
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
[10]
Amendments
22 August 2023 - Formatting amendments.
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: 22 August 2023
At the hearing Mr G We, solicitor, represented the applicant. The respondent was represented by Mr M Short of counsel.
As I understand matters, the respondent presented an opening outline of submissions, which stated in part that:
1. The Applicant's claim against the Respondent is brought on the basis that the Respondent (who, together with the Applicant, was a co-owner of the property at all material times). arranged for other persons.
2. The Applicant's claim is not that the Respondent herself performed any of the works alleged to be defective. Rather, it appears to be agreed that the third party contractors were engaged to perform the relevant works to which the Applicant's claim relates.
3. The following preliminary issues fall for determination:
a. Whether the Applicant has a valid cause of action against the Respondent (or, rather, whether any such claim by the Applicant is as a 'non-contracting owner' against (Cause of Action Issue) against the contractors.
b. Whether the Tribunal has jurisdiction to deal with any claim brought by the Applicant against the Respondent in the event that such a claim is brought for alleged negligence on the Respondent's part (Jurisdiction Issue).
c. Whether the Applicant ought be granted leave to rely on evidence served late. In respect of any aspect of the claims against the Respondent survive the issues in points a. and b. above, the Tribunal is required to determine the issues regarding liability and quantum in respect of the asserted defects. This will likely also include whether the applicant is statute barred from bringing its claim in respect of defects which are not major defects as defined in the Home Building Act 1989 (NSW) (HBA).
…
Cause of action issue
6. The precise nature of the cause of action brought by the Applicant against the Respondent is not clear in circumstances where:
a. The Applicant and Respondent were co-owners of the Property at the time of the relevant works being completed;
b. The Applicant is not a successor in title; and
c. The Applicant has not expressly alleged that there was any contract entered into as between the Applicant and the Respondent.
7. Therefore, the Respondent cannot be liable to the Applicant under any statutory warranties within Part 2C of the HBA,
8. As the Respondent apprehends it, there is no alleged contract, or deemed contract, as between the Applicant and the Respondent. The accords with the comments of the NSWCA decision in Atkinson v Crowley [2011] NSWCA 194 at [18] where Basten JA observed in the context of an owner builder wife and non-owner builder husband who each co-owned a property that:
"Nor was it apparent that he had any rights against his wife: there was no suggestion that they were in a contractual relationship."
9. To the extent that the Applicant's claims sound in breaches of statutory warranties under Part 2C of the HBA, the Respondent notes that the Applicant is a 'non-contracting owner', as defined in s Schedule 1 of the HBA. As such, the Applicant appears to be entitled to the benefit of the statutory warranties under Part 2C of the HBA owed by the contractors who performed the works (ie by Anthony Ariti and Pioneer Aluminium and Glass Australia), per Schedule 4, s 102 of the HBA.
10. The Applicant's evidence is that licensed tradespersons were used to perform the relevant works. For example, the Respondent's evidence is that:
a. Anthony Ariti performed the waterproofing works to the ensuite and main bathrooms. …
b. Pioneer Aluminium and Glass Australia supplied and installed the rear external sliding doors. …
11. Therefore, to the extent that the Applicant has a valid cause of action in respect of any of the alleged defects the subject of these proceedings, he should be bringing a claim against those entities. Section 18D(1) is particularly relevant in this respect.
12. The issue of whether the Applicant has a valid cause of action against the Respondent ought to be determined.
Jurisdiction Issue
…
19. … in the event that the claim by the Applicant against the Respondent is not brought in respect of any statutory warranties owed by the Respondent to the Applicant under the HBA, real questions arise as to whether this Tribunal has jurisdiction in respect of the Applicants claim.
(bolding as in original)
I gather that Mr We submitted that this was the first occasion on which he and the applicant had become aware of any jurisdictional arguments were going to be raised by the respondent. The hearing was adjourned and the following (amended) orders made:
"1. By Determination of member, on 16 November 2022 the hearing was adjourned to 20 Dec 2022 to hear and determine jurisdictional issues affecting the cause.
2. The Tribunal directs that:
a) the applicant file and serve points of claim including jurisdictional issues on or before 30 Nov 2022,
b) on or before 14 Dec 2022 the respondent file points of defence
c) on for before 20 Dec 2022 the applicant file and serve material in reply.
3. Costs of today are reserved".
Interlocutory hearing: 20 December 2022
When the adjourned matter came on for hearing on 20 December 2022, I indicated that it was my understanding, based on the orders of 16 November 2022, that the matter had been adjourned to determine whether or not the Tribunal had jurisdiction to hear the primary application. Mr Short confirmed that this was the case.
However, Mr Simpson indicated that it was his understanding that the matter had been adjourned to allow the applicant to plead his causes of action, and that then there would be argument about jurisdiction. Mr Simpson indicated that he was not in a position to respond to submissions about whether or not the Tribunal had jurisdiction to hear and determine the primary application.
After some discussion on the point, Mr Simpson indicated that he may have misunderstood the purpose of the hearing.
Be that as it may, before argument commenced I volunteered the suggestion that, given the challenges with determining issues separately, perhaps the better course was to adjourn the hearing of the separate issue for it to be considered as part of the final hearing. I adjourned briefly to allow the parties to discuss this proposal, but the "sticking point", as I understood matters, was that the applicant needed to file further evidence to support his claims.
When I referred to challenges, what I had in mind was the observation of the Court of Appeal in Guthrie v Spence (2009) 78 NSWLR 225 at [18]:
"when any court is engaged in activity that amounts in substance to considering a separate question, it is most important that the question be precisely formulated, and actually answered. For the reasons given in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 358-60 [52]-[59] it is important that there be precision, at the time of framing the question, in identifying the relevant facts or the means by which facts relevant to answering the question are to be ascertained"
And, as the Civil Trials Bench Book published by the Judicial Commission of NSW relevantly states at [2-6110] (Relevant principles and illustrations):
A separate determination may result in a substantial saving in time and costs. However, the risk of unforeseen complications is well recognised and demands caution.
While a separate determination should be ordered only if the utility, economy and fairness to the parties of a separate hearing is beyond question: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [170], cases where a separate hearing may be appropriate include where the determination will dispose of the proceedings completely if the decision goes a certain way: CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 607.
(emphasis added)
Transfer of title
The second submission was in relation to pars [17] to [22] of the applicant's Points of Claim. These paragraphs state:
Transfer of Title
17. If, which is denied, the was no Contract formed as pleaded at paragraphs 7 to 9 above, the Plaintiff says the following is an alternative cause of action.
18. The Property was purchased using funds from the sale of a different property previously owned by the applicant and borrowings for which the applicant and respondent were jointly and severally liable.
19. The applicant and respondent each held a one-half interest in the property as joint tenants.
20. On or around 11 November 2022, the respondent transferred the joint estate to the sole ownership of the applicant (Title Transfer).
Particulars
Property Transfer No. A5628563
21. By way of the Title Transfer, the applicant became the immediate successor in title to the applicant's one-half interest in the Property.
22. The applicant is entitled to the benefit of statutory warranties under the Home Building Act as though the residential building work completed by the respondent was done under a contract between the applicant and the respondent.
Particulars
Home Building Act, s 18C(1)
The respondent submits that this argument is conceptually flawed because:
1. as a joint tenant, the applicant and the respondent were each the owner of the whole estate in the property, and did not hold proportionate shares in the property: Blackstone, Commentaries on the Laws of England, Vol 2, p 182 (cited in Butt, Land Law, Seventh Edition, (6301), each joint tenant is "seised per my et per tout... that is, they each of them have the entire possession, as well of every parcel as of the whole". This the respondent submits means that the applicant and the respondent have a right shared with the other to the whole property, but no individual right to any particular share in it: Murray v Hall (1849) 7 CB 441 at 455n, and in Wright v Gibbons (1949) 78 CLR 313 at 330 per Dixon J;
2. each co-owner has an interest identical to that of the other co-owners in nature, in extent and in duration (Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832, p 186a. See also Wright v Gibbons (1949) 78 CLR 313 at 330-1 per Dixon J; Guthrie v Australia and New Zealand Banking Group Ltd (1991) 23 NSWLR 672 at 679 per Meagher JA);
3. in Singh v Kaur Bal (No 2) [2014] WASCA 88, the Court of Appeal of Western Australia stated (per Murphy JA, Pullin and Newnes JJA agreeing):
33. Unlike tenancy in common, where seisin is "distributed" amongst the co-owners, in the case of joint tenancy there is no "distribution" of seisin, as each joint tenant, along with each other joint tenant, is fully seised of the whole estate or interest in land; Butt [1402}-[1404]; Hargreaves & Helmore, An Introduction to the Principles of Land Law (New South Wales) (1972) (86 87).
34. Accordingly, the respondent submits that any joint tenant who wishes to "transfer" his or her "interest" to another joint tenant has, strictly speaking, nothing to convey to the other joint tenant, because the other is already seised of the whole and every part of it, and at common law the appropriate way to effect such a result was by way of "release": Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313 at 323-324, 331; Butt [1404].
Applicant's claim not a "building claim"
The third submission is perhaps the most important of all. In a supplementary submission dated 19 December 2022, the respondent submits that the applicant's claim does not fall within the definition of building claim in the HB Act, and therefore the Tribunal has no jurisdiction to determine the applicant's claim against the respondent.
The respondent submits that the primary application therefore falls "at the first hurdle".
This argument is made out, the respondent submits, by logical examination of ss 3, 48A, and cl 2 of Sch 1 and cl 2(3)(i)(ii) of Sch 1 of the HB Act, and is supported by the Tribunal's decision in Ochudzawa v Lepagier; Lepagier v Ochudzawa [2022] NSWCATCD 57 at [14] to [16] which concludes at [16]:
Supervisory work is therefore by definition residential building work, and therefore a claim by an owner against a supervisor is by definition a building claim under section 48A of the Act UNLESS the residential building work performed by the supervisor is excluded from the definition of residential building work.
(3) Each of the following is excluded from the definition of "residential building work" -
…
(i) the supervision only of residential building work--
(i) by a person registered as an architect under the Architects Act 2003, or
(ii) by a person supervising owner-builder work for no reward or other consideration, or
(iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work,
(italicised text and CAPITALISATION as in original)
In conclusion, the respondent submits that the applicant's claim against the respondent does not fall within the definition of 'building claim' because the respondent did not receive any reward or other consideration for her role as the owner-builder permit holder in respect of the works. Therefore, the applicant's claim should be dismissed for want of jurisdiction.
Again, no evidence has been filed by either party about this issue, although it was asserted by the applicant in his submissions that he has an intention to adduce evidence about the benefit of an increase in the value of the property.
Consideration - adjournment
In summary, I consider that the applicant's application to adjourn the interlocutory hearing for the final hearing should be refused. In doing so, I note the following matters.
First, the matter was set down for final hearing on 16 November 2022, each party having filed their evidence. As the applicant, represented by his solicitor, was not in a position to meet arguments as to jurisdiction that day, so the Tribunal adjourned the hearing.
Secondly, when the jurisdictional argument proceeded on 20 December 2022, again the applicant's legal representative indicated that he was not in a position to proceed. I put no weight on the argument that the respondent (or at least his counsel) was not aware of the purpose of the hearing. In my view, the references to "jurisdictional issues" in the directions of make it plain that the question of jurisdiction was to be separately determined at this hearing.
Thirdly, I do not put any weight on the submission that it was only in the Points of Defence that the respondent was seeking dismissal of the proceedings. The respondent stated this very matter in her affidavit of 19 October 2022.
Fourthly, the substantive application is plainly not ready to proceed. The applicant wishes to file further lay evidence, at least about the alleged oral contract, and expert evidence as well, as noted in the points of the Points of Claim extracted at [18] above.
In my view, given the primary application had been fixed for final hearing once, and the applicant twice being not in a position to meet jurisdictional arguments, the application for an adjournment must be refused. It would not be consistent with the guiding principle (NCAT Act, s 36) to grant the adjournment, and to allow the applicant almost two months to file further evidence.
As submitted by the respondent, the relevant principles for applications for an extension of time to adduce evidence were set out in Mesiha v Murrell [2017] NSWCATAP 1 at [34] to [45]. This includes a description as to how s 36 of the NCAT Act applies. The Appeal Panel summarised the principles at [45] (emphasis added by the respondent):
(1) "the just resolution of proceedings remains the paramount consideration;
(2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters;
(3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings;
(4) a party should be afforded a reasonable opportunity to present its case;
(5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal;
(6) the nature of the case and its importance to the party seeking an extension of time needs to be considered;
(7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal;
(8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants;
(9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.
As it happens, the respondent wished to proceed with her application, noting correctly that the separate issue of determining jurisdiction had been specially fixed for 20 December 2022. As noted, Mr Simpson indicated that he was not in a position to address jurisdictional arguments that day, but I ruled that the respondent's application could proceed, and Mr Simpson could make whatever submissions he was able to and any application he wished.
I also directed Mr Simpson to file written submissions on jurisdiction within 48 hours following the completion of the hearing, Mr Short also being allowed to respond.
In addition, the respondent submits that the clear legislative intention of the HB Act does not extent the "successor in title" provisions to apply in the applicant's circumstances. Put simply, this is because:
the Applicant is and always was an owner of the Property and has appropriate remedies available to him outside of the successor in title provisions.
Mr Simpson was not in a position to respond to these submissions at the hearing.
I am fortified in my view that the application for an adjournment should be refused as, for the reasons stared below, I accept the respondent's submissions that the primary application should be dismissed as being misconceived or lacking in substance, and therefore it is futile to order an adjournment.