Hua Nan Trading v SP32396: s41 extension of s106(6) time bar

Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66

Note: This case was overturned in The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126.

In short

• The Tribunal has jurisdiction under s41 of the NCAT Act to extend the 2-year time limitation imposed by s106(6) of the SSMA.

• Delay in commencing an application within time, where caused by the pre-condition to attempt mediation, may be a valid reason to extend the 2-year time limit.

Facts

The lot owner appellant commenced an application in the Tribunal on 28 April 2022 seeking damages under section 106(5) in relation to water ingress in February 2020.

The law

Section 106(6) of the Strata Schemes Management Act 2015 provides that a lot owner may not bring an action under section 106 for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.

Section 41(1) of the Civil and Administrative Tribunal Act 2013 states that the Tribunal may extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

First instance

The Tribunal found that:

• the applicant became aware of the loss on 9 February 2020 or 2 March 2020 at the latest;

• the application ought to have been filed by 9 February 2022 (or 2 March 2022 at the latest) to be within time;

• the proceedings were commenced out of time; and

• an extension of time to bring the proceedings under section 41 of the NCAT Act could not be exercised, as it would confer on the Tribunal jurisdiction that the legislation makes clear it does not possess.

The Tribunal’s view was that section 41 only applies to extend the period of time for the doing of anything under legislation, and section 106(6) does not state a time for the doing of anything, but rather it prevents the bringing of action outside of two years.

The Tribunal held that section 41 does not extend to apply to extend the time limit under section 106(6).

The application was dismissed.

On appeal

The Appeal Panel upheld the appeal, finding that the Tribunal erred in finding that it could not extend the time limit in section 106(6).

The Appeal Panel found that:

• the temporal element in s106(6) is not a jurisdictional fact;

• even if wrong on that, there is no authority that it is beyond Parliament’s power to provide for the extension of a temporal jurisdictional fact;

• conferral of jurisdiction does not require express wording;

• jurisdiction can be conferred inferentially; and

• the Tribunal has general jurisdiction over a matter involving the SSMA, including jurisdiction to make interlocutory decisions to extend the period of time for the doing of anything under the SSMA despite the contrary under that legislation.

At [64], the Appeal Panel summarised that if the Tribunal has a general jurisdiction in a matter, then it also has specific jurisdiction under the NCAT Act to make orders to extend time. When asked to extend time, the Tribunal is exercising jurisdiction under section 41 of the NCAT Act. Therefore, it has the jurisdiction to consider the extension, but must then consider whether it has the power to extend time as a separate question.

Applying principles of statutory construction, the Appeal Panel considered that section 41 is a ‘beneficial’ provision designed to service non-legally trained parties. It further noted that the power under section 41 is broad and includes the power to extend a time on its own motion, which was noted to reflect the fact that parties are typically not legally represented or legally trained.

Further, it was held that the Tribunal’s interpretation that section 106(6) did not ‘state a time for doing anything’ was unduly narrow and not warranted by the legislative framework or purposive considerations. The Appeal Panel interpreted the words ‘may not bring an action more than two years’ to mean ‘must bring an action within two years’.

Importantly, at [107], the Appeal Panel stated that section 41 empowers an extension of time where the 2-year limit is affected by the mandatory mediation pre-conditions.

The appeal was successful and remitted to the Tribunal to be determined according to law.