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Residential Focus

22 May 2019

#Property & Real Estate

Christine Jones

Published by Christine Jones

Residential Focus

What comes first? The transfer application or leave to amend?

In The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578, the Supreme Court of New South Wales refused an application for judicial review of the decision made by the Appeal Panel of the NSW Civil and Administrative Tribunal (Tribunal) regarding an application to transfer the proceedings to the Supreme Court pursuant to Clause 6 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) as damages exceeded the Tribunal’s jurisdictional limit. 


The Owners Corporation (OC) commenced proceedings in the Tribunal against the developer for alleged defective works one day prior to the expiry of the limitation period.

The timetable for evidence was extended three times for reasons largely attributable to the OC. The OC eventually provided its quantum report six weeks after the last date for compliance. The quantum report assessed damages at $800,000. The OC consequently made an application to transfer the proceedings to the Supreme Court given the damage assessed exceeded the Tribunal’s jurisdictional limit of $500,000.

At first instance, the Tribunal ordered that the proceedings be transferred to the Supreme Court based on the excess quantum. This was reversed by the Appeal Panel. The OC subsequently applied to the Supreme Court for judicial review of the Appeal Panel’s decision.

Appeal Panel’s reasoning

The Appeal Panel concluded that because of the extreme unexplained lateness of the quantum report, the report should not be permitted in evidence. In making this decision, the test applied by the Appeal Panel was the balancing of prejudice whilst having regard to the guiding principle for ‘just, quick, and cheap resolution of the real issues’, as reflected in the CAT Act. Given the OC could not provide a satisfactory explanation for its extreme lateness, the OC’s history of non-compliances and the prejudice on the developer, the Appeal Panel held the balance was in rejecting the report. The Appeal Panel ordered that the proceedings continue in the Tribunal, and that the quantum of the defects claimed remain under the Tribunal’s jurisdictional limit.

Supreme Court’s reasoning

The Supreme Court refused judicial review of the Appeal Panel’s decision. 

The Supreme Court agreed that whilst conceding an excess of $300,000 was not trivial, the Appeal Panel’s decision was not in error or a miscarriage of justice. In making this decision, the Court agreed with the test applied by the Appeal Panel and the finding that the developer was prejudiced by the late evidence. The Court also concluded that the guiding principle to do justice to ‘real issues’ does not provide a licence to disregard procedural rules, and in this case, the OC was clearly responsible for unexplained delays.

This case provides a reminder for applicants to keep informed of limitation periods so proceedings are launched with an indication of damages. The case more critically cautions parties to keep the Tribunal and Court continually informed of delays (or non-compliances) and reasons for those non-compliances.

Author: Divya Chaddha & Jeffery Shi.

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In the media

Housing Industry Association (HIA): Credit squeezes industry activity
The low number of building approvals in the first three months of 2019 are of concern. With this poor quarter of results, the number of new homes being built has fallen by 15.2 per cent this year and a further decline in activity through this calendar year of around 11.0 per cent is expected (15 May 2019).  More...

Building jobs cut as values fall: Survey
Construction jobs dwindled in April as house building activity contracted for the ninth month in a row, according to an industry survey (08 May 2019).  More...

Housing Industry Association (HIA) urges planning minister to stand firm on missing middle code
Further delays to the implementation of the medium density housing code will cost NSW home buyers and limit the choice of housing product for home buyers” said David Bare, HIA Executive Director NSW (15 May 2019).  More...

Philip Thalis on Sydney’s future: Public treasures or throwaway junk buildings
Now renowned architect and City of Sydney councillor Philip Thalis has waded into the fray with a searing look at what will happen to public Sydney under the current regime of how it treats its built environment (14 May 2019).  More...


The business case for social housing as infrastructure
Todd Denham, Jago Dodson, Julie Lawson
Australian Housing and Urban Research Institute: 15 May 2019
This research investigated frameworks for funding social housing as infrastructure, including cost-benefit analysis and alternatives such as ‘avoided cost’ and ‘housing adjusted life years’, to develop stronger analytical methods.  More...

Practice and courts

ABCB Advice: ACT adoption of NCC 2019 deferred to 1 June 2019 - Exclusions apply
The ACT Government has advised that the adoption of NCC 2019 will be deferred in the ACT to 1 June 2019 (08 May 2019). More...

AIBS: Draft Standards open for comment
There are several Standards currently open for comment. Of particular interest are:
AS 1735.12 - Facilities for persons with disabilities for lifts. Closes 17th May
AS/NZS 4671 - Steel for the reinforcement of concrete. Closes 31st May
AS 4420.1 - Windows, external glazed, timber and composite doors.  Closes 11th June
Comments direct to Standards Australia is here consultation page.  More...

OFSC: Changes to Accredited Contractor reporting requirements 2019
Key Dates: Scheme Project information, including End of Project information will be reported on the new Scheme Biannual Report from 1 July 2019 and the first Scheme Biannual Report, for the January to June 2019 reporting period, is due by 31 July 2019.  More...

ABCB advice: ACT adoption of NCC 2019 deferred to 1 September 2019
Advice received from the ACT Government that the adoption of NCC 2019 will be deferred in the ACT to 1 September 2019 (May 2019).  More...

GBCA important deadlines - Green Star certification for your project
Many project teams have timelines set around major events. To support this, these guidelines below (based on typical time frames), which specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones in 2019. Deadlines are from 08 April – 04 November 2019.  More...

NSW BPB Cert Alert newsletter issue 10
'Cert Alert' is your regular update on work by the Board, legislative change, events, training and consultation opportunities (14 May 2019).  More...

EPA: Proposed changes to the regulation of Underground Petroleum Storage Systems (UPSS)
The EPA is consulting on the draft UPSS Regulation 2019 and seeking submissions. Feedback can be provided through the EPA consultation portal here from 17 May 2019 until 14 June 2019.  More...

New dates for Environmental Planning & Assessment Act updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, local strategic planning statements for councils in the Greater Sydney Region and community participation plans


Long v Antoun’s Concrete Pumping Pty Ltd [2019] NSWCATAP 125
COSTS - unsuccessful appeal proceedings from decision of Consumer and Commercial Division-held section 60 of Civil and Administrative Tribunal Act displaced by Rules 38 and 38 A-appellant ordered to pay costs of respondent.

The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 3) [2019] NSWSC 560
COSTS - party/party - general rule that costs follow the event - where quantum determined by referee prior to hearing on liability - where plaintiffs unsuccessful at hearing on liability - whether successful defendants should pay plaintiffs’ costs of the reference - whether successful defendants’ costs should include costs of the reference.   
COSTS - party/party - bases of quantification - indemnity basis - whether defendants entitled to indemnity costs by reason of offers of compromise.   
COSTS - party/party - interest on costs - whether there should be interest on costs. 

The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578
ADMINISTRATIVE LAW - Judicial review - Construction of Home Building Act 1989 (NSW), s 48K - Jurisdiction of Civil and Administrative Tribunal of NSW - Whether the Tribunal had jurisdiction to deal with claim for an amount exceeding $500,000 - Whether the Appeal Panel fell into error in refusing the plaintiff's application to transfer proceedings to the Supreme Court - Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW).
PRACTICE AND PROCEDURE - Civil procedure - Application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal - Civil and Administrative Tribunal Act 2013 (NSW), s 83 - Appeal on a question of law -Test to be applied by the Tribunal when considering a transfer application based on jurisdiction - Test to be applied by the Tribunal when granting leave - Considerations relevant to an application for adjournment – Whether the Tribunal failed to properly consider cl 6(1) Sch 4 of the Act.

The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22
Interlocutory applications - Dismissal application - Transfer application.

Menaker v Adambuilt Pty Ltd [2019] NSWCATAP 117
APPEAL - consent orders - whether basis on which to set aside - joinder of additional party - whether denial of procedural fairness - whether significant new evidence not reasonably available. Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.

JCK Building Solutions Pty Ltd v Marr [2019] NSWCATAP 122
APPEAL - false oral evidence allegedly given at hearing - fresh evidence claim - new evidence was reasonably available at the time of hearing -concession that builder would carry out certain rectification work - leave to appeal refused.

Geneville Constructions Pty Ltd v Leslight (No 2) [2019] NSWDC 172
BUILDING AND CONSTRUCTION - absence of a formal detailed written contract between the parties - terms of alleged contract - extensive factual dispute between main witnesses on numerous issues - entitlement of plaintiff to recover under alleged contract - alternative claim for quantum meruit - extent of any entitlement of plaintiff to recover compensation - claim by the defendant client for damages for alleged defects, delays and other losses. Evidence Act 1995 (NSW), section 161; Home Building Act 1989 (NSW), sections 7, 7A and 10; Uniform Civil Procedure Rules 2005.

Kostos Pty Ltd v Vellios; Vellios v Kostos Pty Ltd
Construction of a new, three-storey residence in suburban Sydney. The general conditions of the Contract were the Master Builders Association Residential (BC4 edition) standard form conditions. The present dispute is about whether: the Builder is owed money for “extras”; the Builder’s liability for incomplete and defective works.
In Application HB 17/21359, the Builder’s Application, the Tribunal orders the Owners to immediately pay the Builder the amount of $55,708.79 including GST. 

Florida Kitchens Pty Ltd v Number One Marble and Granite [2019] NSWSC 574
PRACTICE AND PROCEDURE - Costs - Security costs - Application for security for costs - UCPR 42.21 - Where there is reason to believe the plaintiff will be unable to pay costs if so ordered.

Maloney v Blue Haven Pools South Pty Ltd [2019] NSWCATCD 17


Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Amendment (Building Code of Australia) Regulation 2019 (2019-187) — published LW 10 May 2019.

Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution)
T: +61 2 8083 0477

Divya Chaddha, Associate
T: +61 2 8083 0457

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Christine Jones

Published by Christine Jones

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