(e) a combination of two or more of the remedies referred to in paragraphs (a)-(d),
that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim."
37 Division 1 also contains a definition of "building dispute". In that definition, it is expressed to mean a dispute that has been notified as referred to in s 48C.
38 Section 48C falls within Division 2 and enables any person to notify the Director-General that the person has a dispute of the nature specified therein. Sections 48D and 48E deal with the investigation of the dispute by the inspector and what the inspector may do after completing the investigation.
39 At this point, it is convenient to observe that Division 2 has no application to what has happened in this case and that Mr O'Keeffe was clearly in error in finding that there was a "building dispute" between the Buckles and Reynell.
40 Section 48I of the Division 3 enables a person to make application to the Tribunal for the determination of a "building claim".
41 Section 48K of Division 4 confers jurisdiction upon the Tribunal to hear and determine any building claim brought before it in accordance with Part 3A in which the amount claimed does not exceed $500,000.00. It is common ground that the claim brought by the Buckles does not exceed that amount.
42 The powers conferred by s 48O of Division 5 enable, inter alia, the making of an order that one party to the proceedings pay money to a party or to a person specified in the order, whether by way of debt, damages or restitution.
43 Section 48K confers the jurisdiction on the Tribunal in respect of "building claims" only. It does not confer any jurisdiction on the Tribunal in respect of "building disputes". Indeed, those words do not appear in the section. It was clearly erroneous for Mr O'Keeffe to find that the Tribunal had jurisdiction because the Buckles and Reynell were parties to a "building dispute".
44 I now return to the definition of "building claim". There is no dispute that there has been a supply of building goods or services by Reynell to the Buckles. Accordingly, it is unnecessary to dwell on the definition provided for "building goods or services". Also, it is common ground that it is unnecessary to look at the regulations.
45 Whilst the construction of the Terms of Settlement may not be an easy matter, the submissions made in this appeal have accepted that the Terms of Settlement brought the building contract to an end. This is what was found by Mr O'Keeffe and such a finding seems to be inevitable.
46 Apart from addressing that matter, the Terms of Settlement were also intended to address other matters that were intended to bring an end to claims and the proceedings before the Tribunal. They were intended to bring about certain building work (inter alia, rectification work). They were intended to bring about a transfer of title in respect of structural steel and window materials. They were intended to bring about releases in relation to all parties ("save and except for any breach of statutory warranties").
47 The claim brought by the Buckles in the Tribunal involved an alleged breach of the Terms of Settlement. In effect, what is sought to be litigated is a claim for damages for the loss of benefits that they allege should have been received under the Terms of Settlement.
48 The application claims payment of a specified sum of money. The Tribunal will have jurisdiction if the claim is one that arises from either a supply of building goods or services or arises under a contract that is collateral to a contract for the supply of building goods or services.
49 The relevant dictionary meanings attributed to the word "arising" invoke the concepts of "to come into being", "to originate", "to emerge" or "to result from".
50 In Grygiel v Baine [2005] NSWCA 218, observations were made concerning the approach to be taken to the construction of Part 3A (see Basten JA at, inter alia, [58]).
51 There has been a supply of building goods and services by Reynell to the Buckles subsequent to the building contract. The supply of building goods and services gave rise to the disputes that were the subject of the agreement comprised in the Terms of Settlement.
52 Reynell places emphasis on the claim being founded on breach of the Terms of Settlement and it is said that as such it cannot be characterised as a "building claim". In my view, this approach misconceives the task that has to be undertaken by reason of the language of the section.
53 The question is whether the claim for breach of the Terms of Settlement arises from that supply of building goods and services. In my view, it does. What will fall within the definition will depend on the facts of each particular case. It seems to me that the claim which the Buckleys now wish to prosecute had, inter alia, its origin in the supply of building goods and services.
54 Although it may be unnecessary to do so, I shall make some brief observations concerning the alternative. This involves a consideration of what is a collateral contract.
55 The dictionary meaning of "collateral" involves the concepts of "running side by side"; "parallel"; or "accompanying or supporting the main thing" and "secondary".
56 There have been cases in which the word has been considered in statutory context (see, inter alia, Grygiel). It appears from the cases that the notion of primacy may have been jettisoned and that the word should be understood in the sense of "related to or even in addition to" (see [68]).
57 Whatever meaning be given to "collateral", it seems to me that the Terms of Settlement cannot be regarded as being a contract that is collateral to a contract to a supply of building goods or services. The Terms of Settlement brought the building contract to an end. As a consequence, it was the only contract remaining on foot and was one concerning the supply of building goods or services.
58 Apart from deciding the threshold issue, the only other matters upon which final views were expressed were the issues of res judicata and Anshun estoppel. I am not satisfied that there is any basis for disturbing Mr O'Keeffe's views on those matters. It is unclear as to how it could be asserted that these doctrines could have application in the circumstances of this case. It suffices to mention certain matters. Mr George made no findings and there was no judgment. What was decided by Mr Bordon resolved a jurisdictional issue only.
59 I should also make some observations concerning the issue of repudiation. It seems to me that what was said by Mr O'Keeffe in paragraph 14 of his reasons was no more than an observation concerning the impact of the bringing of the renewal application. The renewal application did not seek to agitate the issue of repudiation. Even if it did, it does not seem to me that the bringing of the application itself would be determinative.
60 There would seem to be a real question as to whether or not the Terms of Settlement remain on foot and/or can now be implemented. A variety of issues may now become relevant. I will mention one of them. The conduct of the parties since the making of the Terms of Settlement would seem to throw up real considerations of whether or not there has been a repudiation and an acceptance of that repudiation. All of these questions are yet to be determined.
61 Most of what has been earlier said could be expected to lead to the result that the Summonses should be dismissed. However in the light of what has been said concerning a "building claim", the provisions of s 48K(3) inevitably bring about a different result. The provisions are as follows:-
"The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made)."
62 In his reasons, Mr O'Keeffe observed as follows:-
"It follows that any dispute concerning the settlement, is a 'building dispute' within the meaning of s 48K of the Act. … [T]he owners allege a dispute exists concerning the settlement. As the settlement (and the new building contract) came into existence on 4 August 2003, the subject application is within time: s48K(3)."
63 It seems to be common ground that no building work was done after 5 December 2000. The application in the proceedings before Mr O'Keeffe was lodged on 12 May 2006. In these circumstances, he fell into error on this question.
64 What is envisaged by the provisions of s 48K(3) cannot be categorised as a limitation defence. It is not of the nature of a defence that operates to bar a remedy. The language of the provision operates as a jurisdictional matter where jurisdiction is attracted by reason of the claim arising from a supply of building goods or services. The claim must be lodged within the three year period after the date on which the supply was made. If the claim is not brought within that period, there is no jurisdiction to entertain it.
65 In this case, the supply of building goods or services had taken place by 5 December 2000. As the application was not brought until 12 May 2006, it has been instituted well out of time and the Tribunal has no jurisdiction to entertain it.
66 This conclusion does not necessarily mean that the Buckles may be without remedy. If they do have a viable claim, relief may be available to them in a court of competent jurisdiction.
67 Because of this insurmountable jurisdictional problem, the proceedings now before the Tribunal are doomed to failure.
68 The decision made by Mr O'Keeffe as to jurisdiction is set aside. The proceedings before him are dismissed. Any question of the costs of those proceedings is remitted back to the Tribunal. The costs of the proceedings before this Court are reserved. Exhibits may be returned.