Bailey & Anor v Owners Corporation of Strata Plan 62666

[2011] NSWCA 293

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Statutory warranties
3. › Residential building work
4. › Jurisdiction of Consumer, Trader and Tenancy Tribunal
5. › Limitation period for building claims
6. › Whether work completed more than seven years before claim lodged
7. › Whether landscaping work is 'residential building work'
8. › Home Building Act 1989 (NSW), ss 3(1), 18B, 48K(7)
1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Error of law on the face of the record
5. › Whether relief should be granted where orders unaffected by error
6. › Supreme Court Act 1970 (NSW), s 69
1. Practice and Procedure
2. › Limitation periods
3. › Preliminary determination of jurisdictional questions
4. › Undesirability of determining limitation and jurisdictional questions as preliminary issues where contested factual questions arise
1. Statutory Construction
2. › Definition of 'residential building work'
3. › Whether landscaping work is 'work involved in the construction of a dwelling'
4. › Home Building Act 1989 (NSW), s 3(1)
5. › Home Building Regulation 2004, reg 5

Quick Take

Landscaping work that involves the construction of structures listed in reg 5 of the Home Building Regulation 2004 (paths, paving, retaining walls, agricultural drainage) is 'residential building work' for the purposes of the Home Building Act 1989 (NSW). Whether landscaping work more broadly constitutes 'residential building work' was left open. The case reinforces that jurisdictional challenges under s 48K(7) of the Home Building Act should generally not be determined as preliminary issues in the CTTT where they depend on contested facts. Certiorari will not issue to quash a decision where the orders are correct notwithstanding an error in the reasons.