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Residential Focus

10 April 2019

#Property & Real Estate

Residential Focus

Date of completion for residential building work

In the recent decision of Ashton v Stevenson [2019] NSWCATAP, the NSW Civil and Administrative Tribunal Appeal Panel (Appeal Panel) considered the application of section 3B of the Home Building Act 1989 (NSW) (the Act), which concerns date of completion of residential building work.

As the date of completion triggers the commencement of the statutory warranty periods, its determination is significant, particularly where there is an argument that proceedings may have been commenced out of time.

Section 3B

Section 3B of the Act provides:

3B Date of completion of residential building work

(1A) This section does not apply to residential building work to which section 3C applies.

Note. Section 3C provides for the date of completion of new buildings in strata schemes.

(1) The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.

(2) If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.

(3) It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work:

(a) the date on which the contractor handed over possession of the work to the owner,

(b) the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion),

(c) the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work,

(d) (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work.

(4) If residential building work comprises the construction of 2 or more buildings each of which is reasonably capable of being used and occupied separately, practical completion of the individual buildings can occur at different times (so that practical completion of any one building does not require practical completion of all the buildings).

(5) This section applies for the purposes of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under the Home Building Compensation Fund.

As the work was owner builder work, section 3B(3)(d) of the Act was relevant.

Competing arguments

It was the new owner’s position that the completion date was 7 February 2015, which was 18 months after the date the owner builder permit (7 August 2013). On this basis, the claim for defects, commenced in November 2016, other than major defects fell in the two year warranty period.

The owner builder relied on the exception contained within section 3B(3), “unless an earlier date for practical completion can be established”. The owner builder led evidence from a family member who had moved in to the property on 16 May 2014 and observed that the renovation of the property was complete except for a parquetry floor and carpet in the attic. Evidence from the carpenter also established that the floor was completed during May 2014.

Findings on date of completion

The Appeal Panel held the former owner successfully established an earlier practical completion date.

The evidence led by the former owner was held to show that at May 2014, the residential building works were substantially complete and reasonably capable of being used for its intended purpose.

This was despite the fact that an occupation certificate had not been issued until 22 September 2015. The Appeal Panel noted that although the Council required the owner builder to resolve discrepancies between the work as completed and the approved plans in correspondence in July 2014, no further works were required by the Council or carried out by the owner builder, which would bear upon the date of practical completion.

Accordingly the claim in so far as it related to defects other than major defects was outside of the two year statutory warranty period.


This decision illustrates the dangers of relying on (for example) the date of an occupation certificate for the commencement of the statutory warranty periods. The Act allows the Tribunal to look beyond that date for earlier practical completion dates. This is particularly hard on subsequent owners who are unlikely to have knowledge of the facts at the time the works were carried out and therefore may not be aware of just when warranty periods will expire.

Author: Christine Jones & Jeffery Shi

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Webster v Tom [2019] NSWCATAP 75
APPEALS – home building claim against builder – allegation of home owners as to a misclassification of building site by an engineer not joined as a party by the owners – terms of builder’s engagement – agreed scope of works for builder - no error of law – competing expert evidence on ongoing cracking and the construction of piers - whether the Tribunal’s findings were not fair and equitable or against the weight of evidence – whether new evidence was reasonably available - no other grounds for leave to appeal – appeal dismissed .

Tom v Jenkins [2019] NSWCATAP 74
APPEALS – builder’s claim against engineer for indemnity in respect of builder’s liability to home owners for defective residential building work – builder’s claim based on allegations of negligence and misleading conduct - extension of time required to appeal – lack of procedural fairness – statutory interpretation of s 48K of the Home Building Act – lack of jurisdiction for the Tribunal to determine the builder’s claim – appeal dismissed.

Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79
HOME BUILDING – Whether the Tribunal erred in failing to find that an agreed damages clause is a penalty clause – Whether the appellant should be granted leave to raise a ground on appeal which was not argued before the Tribunal –– Whether the Tribunal should have considered the appellant’s claim under the Australian Consumer Law instead of the Contracts Review Act.

Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67
In AP 18/31090: (1) The appeal on grounds 1, 2, 3 and 4 allowed. (2) Set aside Order 1 in the Decision and the Respondent is to immediately pay to the Appellant any amount paid under the Order. Home Building – Date of Completion of residential building work – major defect – proof of elements – limitation periods. Home Building Act 1989; Environmental Planning and Assessment Act 1979; Civil and Administrative Tribunal Act 2013.

Botany Bay Apartments Pty Ltd v Badolato [2019] NSWSC 296
BBA is a building company. LAND LAW – conveyancing - two contracts for sale – off-the-plan purchase CONSUMER LAW – misleading or deceptive conduct – whether the vendor breached ss 18 and/or 30 of the Australian Consumer Law – whether the vendor made a representation as to the size of the properties – vendor denied making such a representation – assessment of the relative credibility of representor and representee – fallibility of human memory – reliance upon contemporaneous documents to resolve dispute – where the contemporaneous documents pointed strongly to the representation not being made – where, in any event, the purchaser was on notice within the cooling off period that no such representation was being made – claim unsuccessful CONSUMER LAW – unconscionably – where the purchaser alleged that the vendor was aware of new plans affecting the size of the properties – where such knowledge was purported to have been acquired during the cooling off period - whether the vendor indeed had such knowledge – paucity of evidence in support – purchaser under no special disadvantage – claim unsuccessful CONSUMER LAW – harassment and coercion under s 50 Australian Consumer Law – unsuccessful settlement conference after the commencement of proceedings – purchaser given three options including continuing with court proceedings – whether this amounted to coercion – meaning of coercion – no negation of choice or freedom to act – claim entirely misconceived.

Dassouki v Department of Fair Trading [2019] NSWCATOD 45
The applicant’s application for costs is dismissed.
COSTS - where parties disagreed as to the meaning of the Tribunal’s orders – where applicant brought contempt proceedings to enforce orders – where, at first directions hearing, applicant conceded that respondent’s interpretation of Tribunal’s orders was correct - whether special circumstances exist which would justify a costs order. Administrative Decisions Tribunal Act 1997 (NSW);  Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

The Owners - Strata Plan 87265 v Saaib [2019] NSWSC 289
COSTS – security for costs – relevant factors – impecuniosity – delay – risk of stultification – plaintiff’s impecunious attributable to the defendant’s conduct.
COSTS – security for costs – plaintiff strata corporation – liability of members.

Hutchings v Hope [2019] NSWCATAP 59
CONTRACT LAW – Contract to do residential building work – Sham – Unenforceable of contract under Home Building Act 1989 – “just and equitable” to recover on a quantum merit basis.
ADMINISTRATIVE LAW – Adequacy of reasons – failure to provide analysis of evidence – failure to make relevant findings.

Onethree Pty Ltd v Seaman [2018] NSWCATCD 83
BUILDING AND CONSTRUCTION - Liquidated damages – Right to claim common law damages.

Buckley v Ashby; Ashby v Buckley [2018] NSWCATCD 82
BUILDING AND CONSTRUCTION - Extrinsic evidence – Use of to identify the subject matter of the contract, Termination of contract - Acceptance of repudiation Home building – unenforceable claims - Restitution.

The Owners – Strata Plan No. 80412 v Vickery [2019] NSWCATAP 71
APPEALS – Leave to appeal an interlocutory decision – application for summary dismissal – principles applicable – issue raised on appeal not raised in proceedings at first instance – relevance of prospect if appeal to superior court in exercise of discretion to grant leave. SUPREME COURT – Referral of questions of law – refusal to refer.

Troy Lewis, Partner & National Head of Construction and Infrastructure 
T: +61 7 3135 0614 

Stephen Burton, Partner 
T: +61 7 3135 0604 

Suzy Cairney, Partner 
T: +61 7 3135 0684 

Stephen Natoli, Partner 
T: +61 3 9321 9796 

Kyle Siebel, Partner 
T: +61 3 9321 9877 

Scott Alden, Partner 
T: +61 2 8083 0419 

Christine Jones, Partner 
T: +61 2 8083 0477 

Helena Golovanoff, Partner 
T: +61 2 8083 0443 

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