Tribunal Powers to Determine Applications under the Home Building Act 1989 (NSW) despite Non-compliance with Section 48J of the HBA

One of the issues that came before the Tribunal in the recent decision of Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 was whether the Tribunal had jurisdiction to determine an application which had been accepted by the Tribunal’s registry despite the absence of an investigation by Fair Trading NSW or a direction by the President as required by section 48J of the Home Building Act 1989 (NSW) (“HBA”).

Section 48J of the HBA provides that the principal registrar of the Tribunal must reject any application to the Tribunal for the determination of a building claim unless the provisions of section 48J of the HBA are complied with.

The Tribunal held that the failure to comply with section 48J of the HBA did not deprive the Tribunal of jurisdiction to determine an application which had been accepted. The Tribunal’s reasoning was:

1. That it agreed with the reasoning of the Appeal Panel in S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 as follows:
   • section 48J of the HBA is not a pre-condition to the Tribunal’s jurisdiction to determine home building claims.
   • the Appeal Panel contrasted the terms of section 48J with the requirements of section 48K of the HBA which specifically provides, in subsections (3), (4), (6), (7) and (8), that “the Tribunal does not have jurisdiction” in respect of various classes of building claim after the specified time periods.
2. As section 48J of the HBA does not contain the form of wordings as section 48K of the HBA which clearly states the Tribunal does not have jurisdiction to determine matters not commenced in accordance with the requirements of that section, this suggested that the failure to comply with section 48J of the HBA did not deprive the Tribunal of jurisdiction.
3. The terms of section 48J of the HBA are addressed to the Principal Registrar. The requirement is that the Principal Registrar reject an application “unless satisfied”. It would not be appropriate that the Tribunal should be required to investigate whether the Principal Registrar had been relevantly satisfied in disputed cases.
4. The jurisdiction of the Tribunal is enlivened by the filing of an application. The jurisdiction of the Tribunal is conferred and defined by the NSW Civil and Administrative Tribunal Act (“NCAT Act”).
5. Sections 48I(1) and 48K(1) of the HBA confer jurisdiction upon the Tribunal with respect to building claims.
6. The jurisdiction of the Consumer and Commercial Division of the Tribunal over matters arising under the HBA is within the general jurisdiction of the Tribunal. An application made to the Tribunal for a decision in respect of such a matter is a general application under section 29(4) of the NCAT Act.
7. If the Principal Registrar had rejected the application filed by the Owners Corporation, the Tribunal would have had no jurisdiction because there would have been no application before it. However, since the Principal Registrar had not rejected the Owners Corporation’s application, there was an application before the Tribunal and the Tribunal had jurisdiction to determine it.

Authors: Jasmin H. Singh and Allison Benson