Home or Builders Warranty Insurance Review
Recent case law May 2012
Click on the case name to be taken to the detailed version
| Decision / More Info | Legislation | The question raised | The new position |
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Section 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) provided for appeal from the CTTT to the Supreme Court if in respect of any proceedings, the tribunal decided a question with respect to a matter of law. The question raised in this case was whether 'no evidence ground' of appeal raises a question of law. In particular, whether the jurisdiction of the Supreme Court was properly invoked. |
The High Court found that a Tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law. What amounts to material that could support a factual finding is a question for judicial decision and is a question of law. |
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Strata Schemes (Freehold Development) Act 1973 Strata Schemes (Leashold Development) Act 1986 Strata Schemes Management Act 1996 Strata Schemes Management Regulation 2005 Strata Schemes Management Legislation Amendment Bill 2008 Lin and Anor v The Owners - Strata Plan No. 50276 [2004] NSWSC 88 Uyen Le v Williams [2004] NSWSC 645 Lang v Owners - SP 2539 (Strata & Community Schemes) [2005] NSWCTTT 279 Ridis v Strata Plan 10308 [2005] NSWCA 246 Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272 Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7 |
1. What are strata schemes? 2. What bodies are associated with the management of a strata scheme? 3. What are the duties and obligations of owners corporations and owners/occupiers of individual lots? 4. What is common property? 5. What are the obligations to repair and maintain the common property? 6. What are the insurance requirements associated with strata schemes? |
Please read the full paper presented by Stephen Vardanega in September 2008. |
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Whether the use of documents prepared solely for court proceedings by employees or agents of a party who has provided an "implied undertaking" not to use those documents for purposes other than the litigation is guilty of a contempt of the court and whether that contempt is civil or criminal. |
Agents or employees are themselves guilty of a contempt. It is civil not criminal. |
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Are the Terms of settlement signed by the parties in a CTTT agreement a building contract? |
Yes.However,the Tribunal did not have jurisdiction to hear the matter as the application was made out of time. The application was lodged more than three years after the date on which the supply of goods or services was made. Pursuant to section 48K (3) the Tribunal did not have jurisdiction. |
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Recent developments in Case law Detailed versions
Click on the case name to be taken to the full judgment in .pdf format
| Decision / More Info | Legislation | The question raised | The new position |
|---|---|---|---|
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Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 29/09/2010 High Court of Australia French CJ, Hayne, Heydon, Crennan and Kiefel JJ Supreme Court of New South Wales Rothman J Court of Appeal Spigelman CJ, Allsop P and Basten JA |
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ss 66(2), 67 Supreme Court Act 1970 (NSW) s75A |
Mr and Mrs Kostas' claim in the Tribunal was for indemnity under a Home Owners Warranty Policy with HIA Insurance relating to loss and damage suffered because of an alleged failure by Sydney Construction Company Pty Ltd ("SCC") to complete contracted building works at their residence. After some moderate delay, the Tribunal was asked to determine whether Mr and Mrs Kostas had lawfully terminated the building contract with SCC. On 25 May 2005, the Tribunal found that Mr and Mrs Kostas' purported termination was not effective and an order was made that they had repudiated the contract. On 26 June 2005, Mr and Mrs Kostas instituted an appeal against the decision in the Supreme Court pursuant to s67 of the CTTT Act 2001 (NSW). This section allows the right to appeal against a decision by the Tribunal of a question with respect to a matter of law. Rothman J declared that the termination of the building contract had been lawful and ordered that HIA pay the costs of the proceedings. The Court of Appeal allowed HIA to appeal against the decision of Rothman J on the basis that the Supreme Court had no jurisdiction to have heard the original appeal under s67 of the CTTT Act 2001 (NSW). On 16 September 2009, the Court of Appeal set aside the 30 October 2007 orders made by Rothman J. It was argued by HIA that the powers of the Supreme Court on an appeal under s 67 were limited to correcting legal error and remitting the matter back to the Tribunal. Basten JA examined the basis of 'no evidence' ground of appeal and said that "the preferable view is that while a 'no evidence' ground may support judicial review, it does not form a basis for a statutory appeal under s67(1)". The matter then progressed to the High Court. The appellant argued that once a question with respect to a matter of law was identified, the Supreme Court could determine any other question of fact or law as would enable it to make appropriate orders. By contrast, the respondent submitted that s67 does not give the Supreme Court the capacity to find facts differently from the Tribunal or to find facts not found by the Tribunal. |
The High Court found that a Tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law. What amounts to material that could support a factual finding is a question for judicial decision and is a question of law. In this case, since there was no evidence before the Tribunal (when it decided the separate question identified by the parties as to whether proper notice of termination of the contract had been provided) the Tribunal had made a wrong decision with respect to a question of law. The High Court set aside the orders of the Court of Appeal made on 16 September 2007 and HIA was ordered to pay the costs the High Court appeal as well as the appeal to the Court of Appeal. |
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Strata Schemes Chubb Presentation 04/09/2008 Vardanega Roberts Solicitors Steven Vardanega |
Strata Schemes (Freehold Development) Act 1973 Strata Schemes (Leashold Development) Act 1986 Strata Schemes Management Act 1996 Strata Schemes Management Regulation 2005 Strata Schemes Management Legislation Amendment Bill 2008 Lin and Anor v The Owners - Strata Plan No. 50276 [2004] NSWSC 88 Uyen Le v Williams [2004] NSWSC 645 Lang v Owners - SP 2539 (Strata & Community Schemes) [2005] NSWCTTT 279 Ridis v Strata Plan 10308 [2005] NSWCA 246 Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272 Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7 |
1. What are strata schemes? 2. What bodies are associated with the management of a strata scheme? 3. What are the duties and obligations of owners corporations and owners/occupiers of individual lots? 4. What is common property? 5. What are the obligations to repair and maintain the common property? 6. What are the insurance requirements associated with strata schemes? |
Please read the full paper presented by Stephen Vardanega in September 2008. |
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Hearne v Street [2008] HCA 36 06/08/2008 High Court of Australia GLEESON CJ, KIRBY, HAYNE, HEYDON AND CRENNAN JJ Ipp JA Basten JA Handley AJA Gzell J |
Supreme Court Act 1970 (NSW), s 101(6) |
Disclosure of documents filed in but not yet received in evidence by court – Whether implied undertaking attached to documents that they would not be disclosed to third parties without leave of court – Where documents disclosed to Minister, a member of Parliament, and staff whether such disclosure protected by law of Parliament – Whether such disclosure protected by public interest defence based upon right of communication with Parliament – Whether such questions should or could be decided by Court on basis of grounds of appeal and in face of disclaimer by alleged contemnors. |
Agents or employees are themselves guilty of a contempt. It is civil not criminal. There are implications for users of materials used in court proceedings for "political" or other purposes, for example in an action group such as BARG |
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Vero Insurance Ltd v Buckle [2008] NSWSC 73 18/02/2008 Supreme Court Malpass AsJ CTTT Member GG O'Keeffe |
Consumer Trader and Tenancy Tribunal Act 2001 Grygiel v Baine |
The homeowners made an application in the Consumer, Trader and Tenancy Tribunal ("the Tribunal") seeking compensation from the builder and Vero Insurance Ltd ("the insurer") for defective work. The builder lodged a cross claim for payment. The parties reached a settlement in 2003. The terms of the settlement were put in writing and signed by the parties. The terms of settlement were not reduced to orders of the Tribunal. In 2006 the homeowners lodged a new application in the Tribunal against the builder and the insurer, seeking an order for the payment of $199,098.50 on the basis of a breach of the terms of settlement. The builder and insurer argued that the Tribunal had no jurisdiction to hear the claim. The owners argued that the Tribunal did have jurisdiction as the terms of settlement were a building contract or a contract collateral to such a contract. The Tribunal concluded that the terms of settlement were a new building contract. The Tribunal found that it had jurisdiction to hear the matter as a 'building claim' within the meaning of the Home Building Act 1989 ("the Act"). |
The Tribunal will have jurisdiction under the Act 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. There had been a supply of building goods or services by the builder to the homeowners which gave rise to the disputes that were the subject of the agreement comprised in the terms of settlement. Associate Justice Malpass held that the claim for breach of the terms of settlement arose from the supply of building goods or services. Associate Justice Malpass found that, in the circumstances, the builders and the homeowners were parties to a building claim. Despite this, Associate Justice Malpass found that the Tribunal did not have jurisdiction to hear the matter as the application was made out of time. The application was lodged more than three years after the date on which the supply of goods or services was made. Pursuant to section 48K (3) the Tribunal does not have jurisdiction over building claims if the claim is lodged more than three years after the date of supply. |
Law as at 20 May 2012