Building: Residential Home Building Dispute - Defective Work (Owner) - Constitutional Diversity - Court Pathway (Burns v Corbett)

NCAT's guidance is that the owner still applies to NCAT, which will help the parties come to an agreed settlement. If the dispute does not settle, or the settlement is to be registered and enforced, the owner goes to the NSW Local Court (claims up to $100,000) or the NSW District Court (claims to a maximum of $1,250,000, or more if the parties consent), depending on the size of the claim; the court can make the same orders NCAT could have made. Where a court as well as NCAT can determine the matter, NCAT's guidance is that the owner can go directly to the court; get advice before doing so. Court procedure is more formal than NCAT's and the Evidence Act 1995 (NSW) applies.

The court documents are the ones NCAT and the Local Court publish for this step: the Federal proceedings - Summons seeking leave (UCPR Form 4B, seeking leave under section 34B of the Civil and Administrative Tribunal Act 2013 and the orders sought in the NCAT application) and the Affidavit in support (UCPR Form 40, annexing the NCAT application and reciting NCAT's letter declining the application), taken to the court with a copy of NCAT's letter, the NCAT application and any agreed settlement. That guidance does not call for a statement of claim or for a notice of discontinuance in NCAT. In most cases no additional fee is payable; an additional fee may be payable if there is a significant change from the application lodged with NCAT. Once the court grants leave it manages the matter under its own procedures, and the evidence assembled for NCAT and the Building Commission NSW complaint is prepared for a court hearing.

Key legislation: Civil and Administrative Tribunal Act 2013 (NSW) Part 3A (federal proceedings), s 34B (an application or appeal involving federal jurisdiction may be brought, with leave, in the Local Court or District Court instead of the Tribunal); Home Building Act 1989 (NSW) ss 18B and 18E (implied warranties and limitation periods, which continue to apply in court proceedings); Evidence Act 1995 (NSW) (applies in full in the Local Court, District Court, and Supreme Court, unlike NCAT where the Evidence Act is a guide only). Burns v Corbett [2018] HCA 15 (absolute constitutional bar - cannot be waived by consent); Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (confirmed scope of the constitutional bar for NSW tribunals including NCAT). Practical note: NCAT's guidance is that there is no federal jurisdiction problem where one of the parties is a corporation, so the residence question only arises where both the owner and the builder are natural persons.

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