4-8 Angas Street

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — strata building — breach of statutory warranties — limitation period for breach of statutory warranties — whether breach of warranty becomes apparent in last 6 months of warranty period — distinction between defect and breach of statutory warranty — onus of proof for extension — type of knowledge required — whether defect is a major defect — Home Building Act 1989 (NSW) ss 3B, 3C, 18B, 18E, 48K

APPEAL — question of law — Civil and Administrative Tribunal — proceedings for breach of statutory warranties implied by Home Building Act 1989 (NSW) in residential building work — six year warranty period — Owners Corporation commenced proceedings four months after expiry of six year period — whether proceeding commenced in time — Senior Member found Owners Corporation commenced within further six month period authorised by s 18E(1)(e) because breaches only became apparent in last six months of warranty period — internal appeal — Appeal Panel overturned findings of fact and found proceedings not commenced in time — whether inconsistency on the face of Senior Member’s reasons was a slip — whether Appeal Panel’s construction of reasons involved error of law BUILDING AND CONSTRUCTION — residential building work — Home Building Act 1989 (NSW), s 18E — construction of provision authorising commencement of proceedings in six months after expiry of six year warranty period — whether plaintiff bears onus of establishing facts so as to fall within s 18E(1)(e) — nature of awareness needed to be established in order to fall within section — significance of commencement of proceedings being jurisdictional

APPEALS- BUILDING AND CONSTRUCTION – statutory warranties expired – s18E(1)(e) not enlivened – owners corporation became aware of the defects in 2014 – proceedings commenced on 29 November 2020 - limitation period expired - whether jurisdiction to hear and determine the issues between the parties – mixed question of fact and law - whether the decision of the Tribunal was against the weight of the evidence - whether leave to appeal should be granted – whether the appellant has suffered a substantial miscarriage of justice

COSTS – Calderbank letter – whether offer an adequate compromise – whether offeree not acting unreasonably in rejecting offer