What comes first? The transfer application or leave to amend?
In The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited  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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Housing Industry Association (HIA): Credit squeezes industry activity
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Long v Antoun’s Concrete Pumping Pty Ltd  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)  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  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  NSWCATCD 22
Interlocutory applications - Dismissal application - Transfer application.
Menaker v Adambuilt Pty Ltd  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  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)  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  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  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.
Published by Christine Jones