The Tribunal's jurisdiction under section 48K of the Home Building Act 1989 (NSW) (HBA) is full of curiosities. For example, although many causes of action for building claims have a limitation period of six years, they can only be brought in the Tribunal (as opposed to elsewhere) within three years of the supply.

It has long been a source of confusion as to whether these shorter limitation periods operate as a constraint on statutory warranty claims and how the various periods interact.

The issue was revisited in Promina Design & Construction v the Owners Strata Plan No 97449 [2023] NSWCATAP 252, where the Appeal Panel considered it in the context of determining whether the Tribunal had the power to transfer proceedings to the District Court. The Appeal Panel considered whether section 48K of the HBA, specifically subsections (3) and (7), deprived the Tribunal of jurisdiction to make an order to transfer the proceedings.

Background

The claim for breach of statutory warranty before the Tribunal originally sought $480,000, an amount within the jurisdiction of the Tribunal. Subsequently, experts assessed the claim at more than $500,000 and an application was made to transfer the proceedings to the District Court.

The transfer was opposed on the basis that:

  • the Tribunal lacked the jurisdiction to hear and determine the claim by reason of section 48K(3) of the HBA, which provides a limitation period of three years
  • the claim fell within section 48K (3) as it was a "building claim", as defined in section 48A of the HBA, and related to "goods and services"
  • since the Tribunal lacked jurisdiction, it could not make an order transferring the claim to the District Court.

The Tribunal found that section 48K(3) did not apply as the claim was not a "building claim". Rather, it was a claim for a breach of statutory warranty, with a limitation period of six years for major defects according to section 18E of the HBA.

The basis of the appeal was that the Tribunal erred in finding:

  • the claim was not a "building claim" within the meaning of section 48K(3) of the HBA (which was conceded)
  • section 18E operated to override section 48K(3) to give the Tribunal jurisdiction over the claim.

What is the proper construction of section 48K?

The Appeal Panel found that the proper interpretation of section 48K, sub-sections (3), (4), (6), (7) and (8) is that each class of claim stands independently so that the subsections are mutually exclusive. By way of example, the general provision limiting the jurisdiction of the Tribunal in section 48K(3) does not limit the jurisdiction of the Tribunal in respect of the specific matters the subject of a different limitation in section 48K(7).

The Tribunal's power to transfer when lacking jurisdiction

  1. In circumstances where the Tribunal concluded it lacked the jurisdiction in respect of the relevant proceedings by virtue of sub-sections 48K(3), (4), (6), (7) or (8), the Appeal Panel considered that the Tribunal retained the power to transfer proceedings to a court pursuant to clause 6 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)
  2. This is because the wording of those subsections do not explicitly deny the Tribunal the power to transfer proceedings to a court, pursuant to clause 6 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW).
  3. Further, the Appeal Panel noted that the interests of justice required this.
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