Case Note – Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94

The Home Building Division of Civil and Administrative Tribunal of New South Wales (NCAT) can determine residential building work disputes typically involving breaches of the statutory warranties in section 18B of Home Building Act 1989 (NSW) (HBA).

It was however commonly believed that NCAT cannot determine claims against building professionals under the Design and Building Practitioners Act 2020 (NSW) (DPBA). The recent decision of the Appeal Panel in Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94 (Deaves) clarifies NCAT's jurisdiction to determine DBPA claims.

Background

The applicant brought claims for breaches of statutory warranties in section 18B of the HBA and loss under section 37 of the DBPA against the builder and the developer.

At first instance, NCAT found (amongst others) it lacked jurisdiction to determine the claim with respect to the DBPA.

Claim for breach of duty under the DBPA is a building claim under the HBA

On appeal, the NCAT Appeal Panel found a claim for breach of duty under the DBPA arguably falls within the definition of 'building claim' in section 48A(1)(a) of the HBA:

building claim means a claim for—

  • the payment of a specified sum of money, or

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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.

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The NCAT has jurisdiction to determine

In support of the above interpretation, the NCAT Appeal Panel referred to the drafting of section 48K of the HBA which stipulates the broad jurisdiction of the Tribunal to deal with a "building claim":

48K Jurisdiction of Tribunal in relation to building claims

  • The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).

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(5) The fact that a building claim arises out of a contract that also involves the sale of land does not prevent the Tribunal from hearing that building claim.

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Key takeaway

Until a higher court decision finds otherwise, developers and builders should be prepared to defend DBPA claims in NCAT proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.