Building Disputes – It is Critical to Consider Various Time Limits for bringing Claims and which is the proper Court or Tribunal in which to bring the Claims. One Project can have different claims some of which NCAT may not have jurisdiction to hear and determine

08/08/2024

Care required

Watson & Watson act on behalf of and advise many Homeowners and many Builders in relation to various claims relating to building disputes.  When there is a dispute between a Builder and Owner there is most often, disputes about numerous different aspects of the relationship and contractual issues. 

For most claims, it would be appropriate for the claim to be commenced in the NSW Civil and Administrative Tribunal (“NCAT”) which has jurisdiction to deal with building claims in various circumstances.  In other circumstances, the Tribunal does not have jurisdiction to hear and determine building claims.  NCAT only has jurisdiction to hear various claims if the claim is made within the limitation periods that apply and monetary limits that apply.  It is critical that your claim is commenced in the correct Court or Tribunal.

NCAT may have jurisdiction to deal with some claims but does not have jurisdiction dealing with other claims arising out of the one transaction/Contract for example, relating to the construction of a residential building, house or home. 

The time in which a claim can be commenced in the Tribunal, is not the same time limit that applies in relation to bringing a claim within a Court. 

Section 48K of the Home Building Act is dedicated to establishing the jurisdictional time limit for the separate distinct causes of action (see David Cameron Jones t/as Oz Style Homes Pty Limited v Panchal (“Panchal case”).

As such if a claim or dispute has multiple separate causes of action or breaches, one needs to carefully consider the appropriate jurisdiction for example, Tribunal or Court where the case should be decided.  In relation to building claims, usually the parties have a longer period of time in which to bring a claim which will fall within the jurisdiction of the Court, in circumstances where it might not fall within the jurisdictional time limits of NCAT. 

Further the time limits for each of the separate claims, do not necessarily have the same “start date” from which you calculate the date by which the claim is to be made.

In one case Marks v Stafflair (Home Building), the Tribunal Member G Meadows, Senior Member CTTT indicated that:

                    “It is quite surprising to find that such a basic jurisdictional issue is still the subject of dispute in this Tribunal and particularly in that regard, there are differences of opinion in the published decision.”

We find that there are many cases in which some claims are statute barred in NCAT in that NCAT does not have the appropriate jurisdiction however, a Court would have had jurisdiction to determine the matter if the case had been started or transferred to the Court.

There are opportunities to transfer proceedings to the appropriate Court or Tribunal however, the opportunities are not unlimited and can be unsuccessful.

In these cases where NCAT does not have jurisdiction, an Application should be made by the person attempting to make a claim which would be statute barred in NCAT, as early as possible for the proceedings to be transferred from NCAT to the appropriate Court either Local Court, District Court or Supreme Court having regard to the quantum of the claim.  The Application will often (but not always) be successful if it is made at an early stage.  However an Application often will not be successful if made close to the Hearing.  However if successful (which is not guaranteed), it would almost likely be on a basis that whoever was making the Application at the late stage, would have to pay the costs not only their own costs, but also the costs of the other party.  There is no certainty either way as to whether an Application will be successful.

As to costs, there is no certainty as to what the outcome would be.  There is always a risk having regard to the facts, matters and circumstances. 

A further matter to be considered is that NCAT is the Tribunal chiefly responsible for resolving building claims (Section 48L of the Home Building Act).  In those circumstances, in which a building claim is made in a Court for a claim for which the Tribunal is chiefly responsible, the Defendant can make an Application for the claim to be transferred to the Tribunal and the proceedings must be transferred to the Tribunal in certain circumstances.

In circumstances where a claim is made which is within the jurisdiction and time limits of the Tribunal for example, a Homeowner claiming for damages for breach of statutory warranty and the Builder wishes to make a claim in relation to the same circumstances, for example the same project, the Builder must consider whether the Tribunal has the jurisdiction to hear the claim that the Builder wishes to make and if not, an Application should be made to transfer the proceedings to the appropriate Court, which has jurisdiction to determine each of the claims.  One example of many, where difficulties that may arise, is when the Builder’s claim is for money which claim may have a limit of 3 years to commence proceedings for that claim in the Tribunal however, may have a longer period to commence proceedings in a Court for example, the Supreme Court, District Court or Local Court.

At Watson & Watson our Lawyers have extensive experience in all areas of building and construction law and it is important to seek timely advice.  Please contact Richard Watson, Accredited Specialist, Commercial Litigation in the stream of Building and Construction by contacting his Personal Assistant Shereen Da Gloria to discuss your circumstances. 

The above in our view, is not based on your particular factual matters and it is critical that one considers the factual matters. The above is not to be taken as legal advice to be relied upon, without first contacting Richard Watson as referred to above.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.