The Owners – Strata Plan No. 69743 v TRT Constructions Pty Ltd [2016] NSWSC 375

When considering if proceedings have been commenced within time, in the absence of other evidence, the court inferred the date of completion of work from the date of the final inspections referred to in the Final Occupation Certificate.

The Owners – Strata Plan No. 69743 (registered proprietor), brought proceedings against TRT Constructions Pty Ltd (builder), for breach of statutory warranties implied under the Home Building Act 1989 (NSW) (Home Building Act).

There were two key issues: whether there was a contract to which the builder was a party and whether the proceedings were commenced out of time.

In relation to the second issue, at the relevant time, section 18E of the Home Building Act required that proceedings for a breach of a statutory warranty must be commenced within 7 years (now 2 years unless the breach results in a major defect) from the completion of work.  Proceedings were commenced on 22 October 2009.  The registered proprietor argued that that the works were completed on 28 October 2002, the date of the Final Occupation Certificate.  The builder argued that the works were completed by no later than 21 October 2002, the date listed in the Final Occupation Certificate as the date of the 'Final OC Completion' inspection, and that the limitation period had expired.

The court dismissed the claim because the proceedings were not commenced within time.

McDougall J inferred that a contract existed between the builder and developer on the basis of the certificates of insurance and the common ground that the development described in the certificates was a development upon the land on which the strata title development had in fact been erected and the final occupation certificate related to that development.

The builder did not adduce evidence to show when the work had been completed. His Honour accepted that an inference could be drawn that the works had been completed by the date of the 'Final OC Completion' inspection, referred to in the Final Occupation Certificate, which satisfied the certifier that the works had been completed. It follows that the proceedings were not commenced within time.