Lavery v Dimension Tilers Pty Ltd

[2015] NSWCATCD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59
Hearing dates:	1 April 2015
Decision date:	14 April 2015
Jurisdiction:	Consumer and Commercial Division
Before:	S F Smith, General Member
Decision:	1 The matter is to be listed for directions at the first convenient date. Jurisdiction found
Legislation Cited:	Home Building Act 1989
Cases Cited:	Jol v State of New South Wales (1998) 45 NSWLR 283; Woods v Bate (1986) 7 NSWLR 560
Category:	Procedural and other rulings
Parties:	Brendan Lavery (applicant) Dimension Tilers Pty Ltd (respondent)
Representation:	Messrs Pitcher Walton Solicitors for Respondent
File Number(s):	HB 15/00878

REASONS FOR DECISION

Proceedings

1. This is a twofold claim made by a person who is an owner builder in one matter and the builder in the other. The same issue, namely whether the application is out of time, is central to both and the respondent is the same corporation in each case. The claim is for a money payment of $39,327.39.

2. The claim was filed on 8 January 2015 and was first listed for directions on 19th of that month. On 5 February it was submitted by the respondent that the claims were out of time. Senior Member Meadows ordered that the preliminary jurisdictional issue be decided on the papers before the matter progressed further.

Background

3. In what I shall call the Raven Street claim, the respondent did tiling work at [***] Raven Street [***] in about August 2011. The applicant was an owner builder in that case. He now alleges that the tiling works as performed by the respondent were defective and seeks a remedy against Dimension in this Tribunal.

4. The other matter I shall refer to as the Rosser St matter. Here, the applicant was acting as a licensed builder to construct a dwelling for a client at [***]Rosser St [***] in September 2009. Dimension did tiling work as subcontractor to Mr Lavery. The homeowner found the work defective and sued Mr Lavery to judgment in this Tribunal. In total $11,170.00 was awarded against him for the tiling work. In the present claim the applicant seeks to recover from Dimension as subcontractor, the amounts he paid to the homeowner for the defective tiling work.

Applicant’s Submission

5. Mr Lavery submits that these are statutory warranty claims and thus the time limits of s 18E apply. He says that as the contract in each case was entered into before 1 February 2012, there is a 7 year limitation period. As a result he suggests that both claims are within time.

Respondent’s Submission

6. Mr Walton for the respondent does not take issue with Mr Lavery’s calculation but raises two other issues, a different one for each aspect of the claim.

Raven St

7. The respondent relies on s.48J which provides that:

48 The principal registrar must reject any …building claim unless

a)…the claim has been investigated under Division 2 or

b) The President ...directs that it be accepted without such investigation

8. He also cites a direction made pursuant to s.48J which prescribes the class of applications which are to be accepted by the registrar without investigation. The class of matters does not include claims by owner builders against subcontractors.

9. The conclusion the respondent draws from all of this is that the application with respect to Raven Street has been wrongly entertained and cannot proceed unless it is investigated.

10. The submission does not explore the consequences of the registrar’s action but I think that issue needs comment. Section 48J does not say or even imply that an application wrongly accepted is a nullity. I am satisfied that a s 48J defect is only a procedural irregularity.

11. The effect of proceedings which are initiated contrary to some statutory provision have been explored by the courts several times in recent decades. In Jolv State of New South Wales(1998) 45 NSWLR 283 proceedings had been commenced without the leave of the court contrary to the Felons (Civil Proceedings) Act, Jol being a prisoner serving a sentence. Jol was permitted to seek leave nunc pro tunc. Sheller JA observed:

There has been a long history of decisions that proceedings commenced without leave contrary to such provisions are not nullities but irregularities capable of being cured by the subsequent grant of leave.

12. Also cited by His honour was the dictum of McHugh JA, as he then was, in Woods v Bate(1986) 7 NSWLR 560 at 567

"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition. ... Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice."

13. My conclusion is that there is an irregularity in the cause as commenced but it can be cured nunc pro tunc by a grant of leave under s 48J or by an investigation under Division 2.

Rosser Street

14. In this matter the objection raised by Mr Walton on behalf of the respondent is that the new s 48MA provides that “….rectification of the defective work by the responsible party is the preferred outcome.”

15. As proceedings by the homeowner were concluded some time ago, it is likely that the opportunity for Dimension to undertake corrective work will have been lost. However s 48MA says that rectification is preferred outcome. It is not the only outcome. A money order would be appropriate in a case such as the present one.

16. Moreover I do not think that Mr Lavery is disentitled to succeed against the respondent only because he did not join it as a 2nd respondent, even though that might have been a wise course of action. No authority was put to me about whether or not some kind of estoppel operates against the applicant and on the material before me I find the application well founded.

Conclusion

17. There is no jurisdictional bar to Rosser Street aspect of the claim proceeding to a hearing on the merits.

18. The Raven Street part of the claim is not a nullity. It is tainted by a procedural irregularity which should be cured at an early date by an order by or on behalf of the President or by an investigation under Division 2.

Orders

1. The matter is to be listed for directions at the first convenient date.

S F Smith

General Member

Civil and Administrative Tribunal of NSW

14 April 2015

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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