1. It seems clear enough that the Tribunal found that the appellants, as successors in title to the developer, were able to enforce any breach of the warranties in s 18B against each of the developer and the builder: at [15]-[18] of the reasons.
2. Having so concluded, the Tribunal framed, as a first issue, whether the appellants had established that the issues concerning internal floor space, the attic, the water tank and the rear courtyard deck fell “within the ambit” of the statutory warranties in s 18B, as distinct from the question whether a breach of the statutory warranties in respect of these issues had been established: at [23] (2) and (3), [56], and [74] of the reasons.
3. The reasoning of the Tribunal with respect to this first question, principally, appears in the context of the issue concerning the internal floor space: at [27]-[58].
4. First, the Tribunal appeared to ask itself the question whether the reference in s 18B (1) (a) to a warranty that the work would be done in accordance with the plans and specifications “set out in the contract” applied to the plans set out in the Conveyance Contract or to the plans set out in the construction contract: at [30].
5. The Tribunal did not answer this question directly, although it would seem to be implicit in its reasoning outlined below and from the fact that it did not address the issue whether what was built conformed with the plans in the construction contract, that it did not regard these latter plans as relevant.
6. However, in any event, in our opinion, incorrectly, the Tribunal came to the conclusion that the warranty in s 18B (1) (a) was inapplicable to whatever were the relevant plans given the terms of the conveyance contract and the appellants’ decision to proceed with notice or assumed knowledge of the relevant deficiencies.
7. In this regard, the reasoning of the Tribunal included the following:

35 Most importantly, there is the conveyance contract which curiously, as the respondents point out, is not addressed in the [appellants’] written submissions.

36 Clearly this conveyance contract is of significant relevance and I accept the respondents’ submission that it is the “nexus of the home owner’s claim against the respondents”.

…..

41 The respondents submit that the [appellants] knew the “as built” dimensions of the internal floor space prior to settlement, pointing to the [appellants’] solicitor’s letter, sent to them prior to settlement, with the final registered strata plan.

42 The respondents also point to the [appellants’] initial reluctance but eventual concession, in oral evidence, that there was a final inspection prior to settlement. This, the respondents submit, defeats the [appellants] case, particularly as there is no issue and certainly no issue raised, as to any latent defects.

43 These are very persuasive submissions.

44 The conveyance contract makes it quite clear that the floor space dimensions provided for in that document are not final and there is scope for some variation.

45 The conveyance contract was a contract for the sale of the [appellants’] lot is identified and characterised in that contract, subject to certain rights of the respondents to make some changes and subject to certain rights of the [appellants] to rescind the contract or claim compensation in accordance with the contract.

46 The conveyance contract provides the [appellants] with remedies (Clauses 6 and 7) of which they chose not to avail themselves.

47 The conveyance contract made it clear that the strata plan at the time of the contract exchange was only a draft.

48 The conveyance contract allowed for rescission in some instances and allowed for minor variations (cl 35). I pause here to note that the [appellants’] expert evidence was less than persuasive as to the exact discrepancy in size between what was provided for and what was built.

49 Further, as the respondents submit, the [appellants] through their solicitors’ actions in forwarding them the final registered plan prior to settlement and by way of their final inspections prior to settlement, must be assumed to have been on notice of the matters of which they now complain and in respect of which they nevertheless elected to proceed under the conveyance contract.

50 True it is that the [appellants] have the benefit of the HBA Statutory Warranties (pursuant to a “deemed” contract under s 18C) that the work will be done “in accordance with the plans and specifications set out in the contract and in accordance with.. (the) law” (s 18B(1) (a) and (c)). However, the legislature cannot, in my view, have intended that benefit apply where the [appellants] willingly came to be title holders under a conveyance contract that provided for flexibility in the floor space dimensions; a conveyance contract that provided remedies which the [appellant] chose not to act upon; and where the [appellants] settled on that contract having been alerted to matters of which they must be assumed to have been on notice, given their solicitors correspondence forwarding them the floor space dimensions as built and given their pre-settlement inspections.

51 It is trite to say the HBA is a beneficial statute and that the conveyance contract cannot operate to deprive homeowners of the benefits of that statutory protection.

52 This can be clearly seen in the case of the minor defects referred to above, being the very matters at which the statutory warranties are aimed. Namely, protection to ensure diligent, legal, proper and workmanlike building work.

53 Whether the internal floor space falls within this ambit is doubtful.

54 As already stated, the conveyance contract made specific provisions in relation to the internal floor space and provided certain flexibility to the respondents in relation to that floor space. The conveyance contract afforded the applicant’s protection by giving them certain legal remedies if the final outcome varied or differed from what was provided for in the contract.

55 Yet the applicants chose to complete the conveyance contract and chose not to avail themselves of contractual redress, when they must be assumed to have knowledge of the floor space “as built” prior to settlement, having been in possession of the final floor plan and having made final inspections.

56 It is not, in my view, feasible that in these circumstances the ambit of s 18B (1) (a) statutory warranty is intended to extend to the floor space ratio as an “after the event” option.

57 I find therefore that the [appellants] must fail on this issue.

58 In light of this finding is not necessary to deal with the other issues raised by the parties.

…..

[Addressing the water tank, rear courtyard decking and attic issues]

69 None of the above matters are addressed in the conveyance contract to the detailed degree of which the floor space ratio is addressed and these matters may not have been matters that allowed the [appellants] release from the conveyance contract.

70 Nonetheless, they are all matters that arise under the conveyance contract in matters where, if constituting breaches, as the [appellants] allege gave them the right to seek redress from the respondents under the conveyance contract.

71 Over and above this and where I have the greatest difficulty with the [appellants] case, however, is that these matters (as in the case of the internal floor space) are matters of which the [appellants] must be assumed to have had notice prior to settlement.

72 Although under there “deemed” s 18C contract the applicants have the protection of the HBA Statutory Warranties, it is difficult to accept that the legislature intended this protection to extend to the applicants when they must be assumed to have been in full knowledge, at the very least from the time of their final inspection, of the matters now complained of and yet elected to proceed with the conveyance contract.

73 Thus the same reasoning I applied in considering the internal floor space applies here. Namely, providing for a “deemed” contract incorporating the HBA Statutory Warranties, the legislature seeks to protect homeowners so as to safeguard the quality, standard, legality and certainty of the building work. It is questionable that the legislative intent is to extend such protection where the [appellants], at the very least from the time of their final inspection, were aware of these matters yet proceeded with the conveyance contract and then turned to the HBA Statutory warranties as an after the event, option.

74 Accordingly, I am not satisfied that the applicants have proven that these matters fall within the ambit of the HBA Statutory Warranties.

75 As such their claim must fail and it is not nest through to consider the further issues raised by the parties.

8. There were no findings by the Tribunal as to the precise basis upon which the appellants could have obtained redress and as to the nature of that redress under the conveyance contract before settlement in respect of each of the alleged deficiencies. Nor were there any findings by the Tribunal that the appellants had actual knowledge of such deficiencies before settlement of the contract. We pause to note that it is, at least, far from clear how rights concerning errors or misdescriptions were applicable in the circumstances.

9. As to the claim in respect of s 37 of the DBPA, the Tribunal stated that the Tribunal was a legislative creature which could only operate within the powers specifically extended to it under statute and that the appellants had shown no satisfactory link to establish any specific jurisdiction bestowed upon the Tribunal under the DBPA: at [22] of the reasons.