Application for leave to appeal from the decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal
Civil and Administrative Tribunal Act 2013 (NSW), s 83
Appeal on a question of law
Quick Take
1Where a building contract contains provisions (including in schedules that form part of the contract) precluding the builder from demanding or receiving any part of the contract price until warranty insurance is in force, those provisions operate independently of the Home Building Act 1989 (NSW) to bar the builder's claim — including a claim for agreed/liquidated damages calculated as a percentage of the contract price — where no such insurance was obtained.
2Preparatory work such as obtaining development approval, geotechnical reports, contour surveys and sewer peg-outs, where directly required for and closely connected to the construction of a specific dwelling under a building contract, constitutes 'residential building work' within cl 2(1) of Sch 1 of the Home Building Act 1989 (NSW), applying the 'closer connection' test articulated in Lawrence v Ciantar [2020] NSWCA 89.
3Section 92(2) of the Home Building Act 1989 (NSW) prohibits demanding or receiving payment 'under a contract for residential building work' whether or not work has commenced; accordingly, even if the particular activities undertaken do not themselves constitute residential building work, the statutory bar applies where the contract is one for residential building work.
