Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 252 Hearing dates: 30 May 2023 Date of orders: 05 September 2023 Decision date: 05 September 2023 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member E Bishop SC, Senior Member Decision: 1. Grant the appellant leave to appeal. 2. The appeal is dismissed. 3. Either party may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, and any evidence relied upon in support, seeking an order in relation to the costs of the appeal. 4. If either party files submissions pursuant to order (3), the other party may file and serve submissions not exceeding five pages in response to any such submissions, and any evidence relied upon in support, within a further 14 days. 5. Any submissions filed in accordance with orders (3) and (4) should address the issue whether the question of costs can be determined on the basis of the written submissions and without a further hearing. 6. If neither party files submissions in accordance with order (3) there will be no order in relation to the costs of the appeal. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) s 48K — Jurisdiction of the Civil and Administrative Tribunal — Claim for breach of statutory warranty — Section 48K(3) does not limit the Tribunal's jurisdiction in respect of claims for breach of statutory warranty — Civil and Administrative Tribunal Act Schedule 4 clause 6 — Power of the Tribunal to transfer proceedings to a court — The Tribunal has power to transfer proceedings to a court even where the Tribunal has no jurisdiction in respect of the claim — Consideration of the circumstances in which it will be appropriate to order the transfer of proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Sch 4 cl 6 Consumer Trader and Tenancy Tribunal Act 2001 (NSW) Design and Building Practitioners Act 2020 (NSW) Home Building Act 1989 (NSW) ss 18B, 18C, 18D, 18E, 48K, 48L Home Building Act Amendment Act 2011 (NSW) Home Building Act Amendment Act 2014 (NSW) Interpretation Act 1987 (NSW) Statute Law (Miscellaneous Provisions) Act 2012 (NSW) Cases Cited: Atkinson v Crowley [2011] NSWCA 194 Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273 Draybi Bros Pty Ltd v Diab [2014] NSWCATCD 67 Dyldam Developments Pty Ltd v The Owners Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327 Jones t/a Oz Style Homes v Panchal [2018] NSWCATAP 238 Marks v Stafflair [2012] NSWCTTT 199 Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 McIntosh v National Australia Bank (1988) 17 FCR 482 No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] Ch 229 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Promina Design & Construction Pty Ltd v The Owners – Strata Plan No 97449 [2023] NSWCATAP 122 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Stevenson v Ashton [2019] NSWSC 1689 The Owners – Strata Plan No 70030 v Decon Australia Pty Ltd [2014] NSWSC 347 The Owners Strata Plan 83405 v Ralan (Culworth) Pty Ltd [2019] NSWSC 578 Tinsley v Masterton Homes Pty Ltd [2013] NSWCTTT 26 Todorovska v Brydens Lawyers Pty Ltd (2022) 108 NSWLR 147; [2022] NSWCA 47 Vero Insurance Ltd v Buckle [2008] NSWSC 73 Wilson v Chan & Naylor [2018] NSWCATAP 311 Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 Texts Cited: None cited Category: Principal judgment Parties: Promina Design & Construction Pty Ltd (Appellant) The Owners – Strata Plan No 97449 (Respondent) Representation: Counsel: T Smartt (Appellant) B Anderson (Respondent) Solicitors: Centurion Lawyers (Appellant) Khoury Lawyers (Respondent) File Number(s): 2023/00116958 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 March 2023 Before: G Ellis SC, Senior Member File Number(s): HB 22/47176 REASONS FOR DECISION Introduction 1. This is an appeal from a decision by the Tribunal to transfer proceedings to the District Court. 2. The respondent to the appeal was the applicant and the appellant was the respondent in the first instance proceedings. In these reasons we will refer to the parties as the appellant and the respondent, that is by reference to their respective roles in the appeal. Background to dispute in Tribunal below 1. The respondent is the owners corporation of a strata plan in Killara, NSW which, by application filed on 21 October 2022, sought an order in the Tribunal for an amount expressed as "tba, estimated only at this stage $480,000". 2. The respondent attached to its application Points of Claim, which pleaded entitlements both pursuant to ss 18C and 18D of the Home Building Act 1989 (NSW) (HBA) for breach of the statutory warranties contained in s 18B of the HBA and pursuant to the Design and Building Practitioners Act 2020 (NSW). 3. Sections 18B, 18C, 18D and 18E of the HBA relevantly provide: 18B Warranties as to residential building work (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work— (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new, (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time, (e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling, (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment. … 18C Warranties as to work by others (1) A person who is the immediate successor in title to an owner-builder, a holder of a contractor licence, a former holder or a developer who has done residential building work on land is entitled to the benefit of the statutory warranties as if the owner-builder, holder, former holder or developer were required to hold a contractor licence and had done the work under a contract with that successor in title to do the work. (2) For the purposes of this section, residential building work done on behalf of a developer is taken to have been done by the developer. 18D Extension of statutory warranties (1) A person who is a successor in title to a person entitled to the benefit of a statutory warranty under this Act is entitled to the same rights as the person's predecessor in title in respect of the statutory warranty. … 18E Proceedings for breach of warranty (1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions— (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), (d) if the work is not completed, the warranty period starts on— (i) the date the contract is terminated, or (ii) if the contract is not terminated—the date on which work under the contract ceased, or (iii) if the contract is not terminated and work under the contract was not commenced—the date of the contract, … (1B) Subsection (1A) does not limit any other law that permits the period for commencement of proceedings to be extended. … (4) In this section— major defect means— (a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause— (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building, or (b) a defect of a kind that is prescribed by the regulations as a major defect, or (c) the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act. … major element of a building means— (a) an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or (b) a fire safety system, or (c) waterproofing, or (d) any other element that is prescribed by the regulations as a major element of a building. 1. The Points of Claim alleged that: "There are numerous defects affecting the Building which have been caused as a result of various breaches of the Statutory Warranties by the Builder during the Construction." 1. The defects and breaches of statutory warranty were particularised by reference to a report of Demlakian Engineers dated 3 May 2022 and also: "ii Possible further defect report to be obtained; iii Possible fire Defect Report to be obtained; iv Scott Schedule to be obtained with costings and possibly Quantity Surveyors Report." 1. The Points of Claim alleged that the respondent had suffered loss and damage by reason of the defects and breaches of statutory warranty but did not specify the amount claimed by the respondent. The particulars provided of the respondent's loss and damage were: "a. The cost of rectifying the Defects, including consequential losses, which are to be set out in the Scott Schedule in due course; b. The cost incurred by the Applicant associated with having the Defects rectified, including the cost of retaining an appropriately qualified person (or persons) to act as a superintendent to be quantified in due course." 1. At a directions hearing on 28 November 2022, the possibility of transfer of the proceedings to the District Court was flagged and a timetable was fixed for the respondent to file any application for transfer. 2. The respondent was also given leave to amend the Points of Claim. 3. Clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides: 6 Transfer of proceedings to courts or to other tribunals (1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are— (a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and (b) to continue before that court as if the proceedings had been instituted there. 1. A "Division function" is defined by clause 1 of Schedule 4 as a function of the Tribunal allocated to the Consumer and Commercial Division of the Tribunal. By virtue of clause 3 of Schedule 4, the functions of the Tribunal in relation to the HBA are allocated to that division. 2. By letter dated 3 February 2023, recorded as received in the Registry on 6 February 2023, the respondent filed a bundle of documents including: 1. an Application for Miscellaneous Matters, seeking an order that the proceedings be transferred to the District Court; 2. submissions in support of the application; 3. an affidavit affirmed by Mr Marek Blaszczakiewicz, a building consultant, exhibiting a "Building Defects Report" dated 3 February 2023 and a Scott Schedule; and 4. Amended Points of Claim. 1. The basis for the application was that the respondent's expert building/engineering consultant (ie Mr Blaszczakiewicz) had concluded that the amount of the respondent's claim would exceed $500,000. 2. The amount of $500,000 was significant by reason of s 48K(1) of the HBA. As s 48K was of central significance to the appellant's grounds of appeal, it is convenient to set out all relevant parts of s 48K: 48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). (2) The Tribunal has jurisdiction to hear and determine any building claim whether or not the matter to which the claim relates arose before or after the commencement of this Division, except as provided by this section. (3) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made). (4) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that are required under a contract to be supplied to or for the claimant on or by a specified date or within a specified period but which have not been so supplied if the date on which the claim was lodged is more than 3 years after the date on or by which the supply was required under the contract to be made or, if required to be made in instalments, the last date on which the supply was required to be made. … (6) The Tribunal does not have jurisdiction in respect of a building claim arising out of a building cover contract required to be entered into under this Act if the date on which the claim was lodged is more than 10 years after the date on which the residential building work the subject of the claim was completed. (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E). (8) The Tribunal does not have jurisdiction in respect of a building claim relating to— (a) a contract for the supply of goods or services to which none of subsections (3), (4), (6) and (7) applies, or (b) a collateral contract, if the date on which the claim was lodged is more than 3 years after the date on which the contract was entered into. … 1. Mr Blaszczakiewicz stated in his affidavit that he had carried out inspections at the property in 2021 and in March and April 2022 and had been instructed to re-inspect the building in preparation for writing a report. 2. Mr Blaszczakiewicz stated: "10. I inspected the building during December 2022 and January 2023 for the purpose of preparing a report. During my inspection, as I had not inspected it for over a year, I noticed there were more major structural defect issues. I also gained access to the Internal apartments. There were a number of apartments that had defects. I was finding that since my initial preliminary report the extent of the defects in the building were far-reaching. 11. In preparing the Scott schedule I ascertained that the cost of the defects exceeded $500,000.00. I was aware of the jurisdictional limit of the Tribunal. I contacted the solicitor with carriage of the matter and immediately alerted her to the likely value of the claim. 12. The Scott Schedule has been prepared which sets out the defects and my estimate of the costs involved to rectify each item. Exhibited in "MB-1" … is my report which also includes the Scott Schedule. 13. … The amount of the claim is $711,590.00 inclusive of GST." 1. Mr Blaszczakiewicz stated that he had experience in assessing building defects and the cost of rectification but acknowledged that he was not a qualified quantity surveyor or cost estimator. 2. The Scott Schedule attached to Mr Blaszczakiewicz's report ran for 159 pages and listed 74 items. 3. The only amendment to the Points of Claim made in the Amended Points of Claim was the removal of the claim pursuant to the Design and Building Practitioners Act. 4. The appellant filed submissions opposing the transfer on the bases: "a. First, the Tribunal does not have jurisdiction over the applicant's claim by reason of s 48K(3) of the Home Building Act 1989 (NSW) (Home Building Act). It therefore does not have the jurisdiction to make an order transferring the claim to the District Court. b. Secondly, even if the Tribunal did have the jurisdiction in this case to transfer the claim to the District Court, the Tribunal should not do so for discretionary reasons." 1. The second basis was said to arise: 1. As "[t]he assumption of the applicant's application for transfer is that because an expert report prepared on its behalf estimates the cost of repair to be over $500,000, the 'amount claimed' exceeds $500,000. That assumption is wrong. In The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd [2014] NSWSC 347, Schmidt J said at [61]: [The plaintiff] relied on its new expert's statutory declaration to provide a basis for its transfer application, taking the view that his advice that what was clamed [sic] would amount to some $1.8 million, was a sufficient basis to bring the claim beyond the Tribunal's jurisdiction. That is not how the Home Building Act operates. Section 48K confines the Tribunal's jurisdiction under the Act to claims brought to the Tribunal which fall below the specified amount, not the advice on which those claims rest. The applicant in this case is making the same error in conflating the number of an estimate in an expert report with the amount that is claimed. In truth, the applicant has not claimed this amount in either the original points of claim or the amended points of claim, nor explained how a claim of this kind under the Home Building Act could be properly formulated. That being so, the application must fail." and 1. By reason of alleged prejudice arising because of the respondent's delay in commencing the proceedings. 1. The respondent filed submissions in reply. Those submissions maintained that the claim was a claim for breach of statutory warranties under s 18B of the HBA, referred to s 18E of the HBA, and set out paragraphs from its points of claim which alleged that the applicant had breached the statutory warranties. 2. The submissions stated: "13. Accordingly, it is the Applicant's position that the claim was clearly set out in its Home Building Division Application and Points of Claim and it is unsubstantiated as to why the Respondent is indicating the claim is based on building goods and services. The Tribunal's Jurisdiction 14. Section 48K of the Act provides in 48K(1) that the Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). 15. This is the basis in which the Applicant's Home Building Division Application and Points of Claim arises from not section 48K(3) as claimed by the Respondent. 16. The current position is that the Applicant's claim exceeds $500,000.00 and therefore takes it out of the jurisdictional limit of section 48K(1) of the Home Building Act 1989." 1. The application for transfer was listed before a Senior Member of the Tribunal on 13 March 2023. The parties provided a transcript of that hearing which indicated that the hearing took a little over seven minutes, during which the parties identified their evidence and submissions, and representatives of both parties very briefly addressed the Tribunal. Notably, neither the written submissions of the parties nor the oral submissions referred to s 48K(7) of the HBA. Tribunal's decision 1. The Tribunal's decision was delivered later the same day. The Tribunal ordered that the proceedings be transferred to the District Court and reserved the question of costs. 2. The Tribunal's reasons for decision were short. Omitting formal parts, they were as follows: "1. The applicant's request for an order transferring these proceedings to the District Court was opposed by the respondent on multiple grounds. … 3. First, it was contended that this application was out of time because it was a 'building claim relating to goods and services' which was governed by s 48K(3) of the Home Building Act 1989 (the HBA) which specifies a limitation period of 3 years. The response was that the applicant's case is based on breaches of the statutory warranties provided by s 18B of the HBA for which the limitation period specified in s 18E is 6 years for major defects. 4. The words 'building claim', as defined in s 48A of the HBA, do not cover this application. As a result, s 48K does not apply. This is a claim for breach of the statutory warranties for which the specified limitation period set by s 18E is 6 years for major defects, otherwise 2 years. Even if it could be said that this application involves a 'building claim' that is covered by the general limitation period set by s 48K, the specific provision prevails over the general provision. 5. Secondly, it was contended that the applicant's claim did not exceed $500,000 because it was not sufficient for an expert's report to suggest an amount exceeding that figure. Reference was made to what was said in The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd [2014] NSWSC 347 at [61]. However, the applicant has lodged Amended Points of Claim which seeks to recover damages and particularises the cost of rectifying defects by reference to an expert report which provides an estimate of loss of $711,590. As a result, while that amount if [sic, is] not specified in the Amended Points of Claim, that amount is claimed by reason of paragraph 22 alleging loss and damage by reference to that report and paragraph 37 claiming that loss. 6. Even if it could be said that was not sufficient, were this transfer application to be rejected on that basis, the applicant could then file Further Amended Points of Claim which did claim an amount greater than $500,000 and make another application for transfer which could not be then resisted on the same basis, namely that s 48K(3) of the HBA does not deprive the Tribunal of jurisdiction because the 'the amount claimed does not exceed $500,000'. Requiring the applicant to lodge Further Amended Points of Claim would be contrary to the Tribunal's guiding principle, established by s 36 of the Civil and Administrative Tribunal Act 2013, which sets the goal of the just, quick and cheap resolution of the real issues in the proceedings. 6.[bis] Thirdly, it was submitted that the applicant served the respondent on the day when the limitation period expired. The relevant dates contained in the written submissions are as follows: 2014 - construction commenced 28 October 2016 - interim occupation certificate issued 10 November 2016 - final occupation certificate issued 21 October 2022 - application filed 1 November 2022 - respondent served 7. It is not appropriate to make a final determination of an issue at a preliminary stage of proceedings unless the position is clear and the Tribunal is satisfied that the applicant, in this instance, has an arguable case in that (1) the application was lodged less than six years after the interim occupation certificate was issued, and (2) the respondent was served less than six years after the occupation certificate was issued. As a result, any contention as to the operation of the six-year limitation period is a matter that should not be determined at this early stage of the proceedings." 1. The appellant lodged its Notice of Appeal on 6 April 2023. The appellant also sought a stay of the orders of the Tribunal. The application for a stay was dismissed by the Appeal Panel (differently constituted) on 4 May 2023 (Promina Design & Construction Pty Ltd v The Owners – Strata Plan No 97449 [2023] NSWCATAP 122). 2. The Appeal Panel held at [23] that the transfer order took effect when made and at [25]: "I do not think that the decision at first instance is one which the Appeal Panel has any meaningful power to stay. Further, having given the, legally represented, appellant the opportunity to consider the issue in advance of the hearing, I do not think it necessary to decide whether I could make another order affecting the operation of the decision which would achieve the outcome the appellant seeks." 1. The Appeal Panel was informed that the District Court had been advised of the existence of this appeal and had adjourned the transferred proceedings to a date after the hearing of the appeal. We are not aware of what may have occurred subsequently. The nature and scope of internal appeals 1. By virtue of s 80(2)(a) of the NCAT Act, internal appeals from interlocutory decisions of the Tribunal may be made only by leave of the Appeal Panel. The appellant concedes that the appeal is from an interlocutory decision of the Tribunal and that therefore the appellant requires leave to bring the appeal. 2. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel held, at [34] – [35]: 34 … there is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins [Collins v Urban [2014] NSWCATAP 17] at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. 1. The matters set out in Collins v Urban [2014] NSWCATAP 17 at [84 (1)-(2)] referred to in Champion Homes v Guirgis at [35(9)] are: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. Grounds of Appeal 1. The grounds of appeal set out in the Notice of Appeal were: "1. The Tribunal erred in holding that the claim of the applicant in the proceedings below was not a building claim within the meaning of s 48K(3) of the Home Building Act 1989 (NSW) (the Home Building Act). 2. The Tribunal erred in holding s 18E of the Home Building Act operated to override s 48K and to give the Tribunal jurisdiction over the claim of the applicant in the proceedings below." 1. In its Reply to Appeal, filed on 21 April 2023, the respondent opposed the grant of leave to appeal and maintained that the claim related to breaches of the statutory warranties in s 18B of the HBA. The respondent noted that the Notice of Appeal had not made reference to s 48K(7) of the HBA and stated: "Rather the Appellant is relying on section 48K(3) which is a different provision and not a claim the Respondent is making or relying on." 1. At the hearing of the appeal, the respondent conceded that the Tribunal had made an error in the reasons for decision in that the respondent's claim was clearly a "building claim" (contrary to the finding of the Tribunal in paragraph [4] of its decision). The respondent submitted that, despite that error, leave to appeal should not be granted because no substantial miscarriage of justice arose from that error as the decision to transfer the proceedings on the basis that the claim exceeded the Tribunal's jurisdictional limit of $500,000 was correct. 2. The appellant submitted that the application to transfer should be remitted to the Tribunal for hearing. The appellant asserted that the respondent had raised for the first time in its Reply to Appeal the proposition that s 48K(7) applied to the exclusion of s 48K(3). 3. The appellant submitted: "The respondent never relied on or referred to this provision below. In light of the respondent taking this point for the first time on appeal, and given the pre-existing issues on appeal, there are now three issues that must be determined in order to determine the respondent's application: a. The first issue is whether s 48K(3) or (7) or both apply to the respondent's claim. b. The second issue is whether the correct time limit (either under s 48K(3) or (7)) for commencing these proceedings in the Tribunal had in fact expired by the time the respondent commenced these proceedings, such that the Tribunal did not have jurisdiction "in respect of" the respondent's claim. c. The third issue is whether the Tribunal being deprived of jurisdiction "in respect of" the respondent's claim by s 48K(3) or (7) means that it was deprived of jurisdiction to transfer the proceedings to the District Court." 1. The appellant submitted that the respondent's reliance on s 48K(7) "introduces a complicated factual issue that was not raised below". That factual issue was said to be whether each of the alleged defects relied upon by the respondent were "major defects" as that term is defined in s 18E of the HBA. A claim by the respondent for a breach of statutory warranty resulting in a defect that is not a major defect (which we will refer to as a minor defect) would not be within the jurisdiction of the Tribunal, as the proceedings were commenced outside the two-year period specified by s 18E of the HBA as the period within which proceedings for minor defects must be commenced. 2. The appellant submitted: "15 … d. The respondent in this case has alleged hundreds of defects: ... The Appeal Panel has previously held (after detailed reasoning) that the correct approach to determining whether the Tribunal has jurisdiction under s 48K(7) is to consider each claim made by the applicant individually, rather than collectively: [citing Jones t/a Oz Style Homes v Panchal [2018] NSWCATAP 238 at [44]]. Thus, as the Appeal Panel has expressly held, a claim can be out of time insofar as it concerns minor defects, but in time insofar as it concerns major defects: [citing Jones v Panchal at [44] to [45]]. Thus, the determination of this issue requires classification each of the hundreds of defects as minor or major." 16. The resolution of this factual issue is unsuited for determination by the Appeal Panel." 1. The appellant submitted that it would not be procedurally fair for the Appeal Panel to determine the factual issue. The appellant noted that it had not had an opportunity to retain an expert "to inspect the building to determine whether the defects exist and are major". The appellant submitted that it was not feasible for the Appeal Panel to determine this issue and that "the practical course is to remit the proceedings to the Tribunal so that it can give appropriate directions for the resolution of this issue, so that the appellant has a sufficient opportunity to respond." 2. The appellant further submitted that the Tribunal has a duty to be satisfied that it has jurisdiction and that "it would be erroneous for the Appeal Panel to proceed to make a determination as to jurisdiction in the absence of a proper evidentiary footing to do so." 3. The respondent's position was that it would not be consistent with the guiding principle in s 36 of the NCAT Act to remit the application to the Tribunal. The respondent submitted that the issues can be dealt with appropriately by the Appeal Panel. 4. It is convenient to address the proper construction of s 48K before considering the other issues raised by the appellant. The first issue – The proper construction of s 48K The Proper Construction of s 48K – Appellant's submissions 1. The appellant submitted that s 48K(3), in providing that the Tribunal "does not have jurisdiction in respect of" the building claims described in that sub-section, "operated to deprive the Tribunal of jurisdiction in respect of the respondent's claim." 2. The appellant submitted: "22. The appellant's construction of s 48K(3) has the benefit of being the natural and ordinary one. That is because: a. The respondent's claim is a 'building claim': see s 48A. There was no dispute about that before the Tribunal below. The predicate of the respondent's transfer application was that the claim was a building claim. b. The respondent's claim relates to building goods or services. The respondent complains about various defects in the building as a result of the appellant's building services. c. The building services were provided for the respondent. The respondent claims to be the successor in title pursuant to s 18D of the Home Building Act … Accordingly, if the natural and ordinary meaning of s 48K(3) prevailed, then the appellant would on the first issue as well. 23. It is the respondent's position, however, that there is an implied limitation on the sweep of s 48K(3), such that claims that fall within s 48K(7) do not fall within s 48K(3). However, this construction should be approached with caution. It requires reading 48K(3) as if it had words of limitation at the start that are not there ('unless the building claim is for breach of statutory warranty'). As has been repeatedly held, '[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity, it is a wrong thing to do': see Thompson v Goold & Co [1910] AC 409 (Goold) at 420 (Lord Mersey), quoted with approval in Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue (2014) 85 NSWLR 443 at [47] (Ward JA; Bathurst CJ and Tobias AJA agreeing). 24. There is no clear necessity here. Section 48K(7) has ample work to do on its own, without removing work from s 48K(3). That is because on this reading, s 48K(7) would deprive the Tribunal of jurisdiction to determine claims for breach of statutory warranty causing minor defects, which is subject to a time limitation of two-years under s 18E(2). Such a claim would not be caught by s 48K(3), because that imposes a time limit of three years. That being so, there is no necessity - let alone clear necessity - for reading s 48K(3) otherwise than in accordance with its natural and ordinary meaning. On the strength of Goold, the appellant's construction should prevail. 25. Without implying that policy considerations could overwhelm the clear words of a statute, there is no practical problem caused by this construction. All it means is that after three years after the date on which a supply is made within the meaning of s 48K(3), an applicant must commence proceedings in a court instead of in the Tribunal. That is already the effect of s 48K(3). For example, if a person brings proceedings alleging breach of an express term of a contract (that is, not a statutory warranty), that person is able to bring those proceedings in the Tribunal for three years after the date on which the supply is made, but is left to bringing the proceedings in a court for the three years after that until the limitation period under s 14 of the Limitation Act 1969 (NSW) expires. As a result, all the appellant's construction does is bring s 48K(3) into alignment with the status quo." 1. The appellant addressed two decisions of the Appeal Panel which included comments relevant to this issue. 2. In Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273 (Diao) the Appeal Panel set out ss 48K, 18E and 3B of the HBA and stated, at [34]: "34 From the legislative provisions above, the following conclusions can be drawn: (1) Section 48K(7) applies where the cause of action under the HBA is for a breach of statutory warranty. In such cases, s 18E(1) specifies the length of the statutory warranty period (six years for major defects and two years for other defects) and specifies from when the statutory warranty period runs (where the work is completed, 'on completion of the work to which it relates'). Section 3B is concerned with determining the date of completion from which time is to be calculated. (2) Section 48K(3) applies where the cause of action under the HBA is not for breach of statutory warranty, but for some other cause of action such as breach of contract, in cases where building goods and services have been provided to or for the claimant. In such cases, for the Tribunal to have jurisdiction, the application must be lodged within three years of the last supply of building goods and services. Sections 18E and 3B do not apply to claims brought under s 48K(3)." 1. The appellant submitted that: "There was no reasoning or authority given for that conclusion. As a result, and seeing as the Appeal Panel was not dealing with a claim for breach of statutory warranty, Diao does not assist the respondent." 1. In Jones t/a Oz Style Homes v Panchal [2018] NSWCATAP 238 (Jones v Panchal) the Appeal Panel held at [44] – [45]: "44 … where, as this in case, an application includes claims for damages for breach of contract in respect of delay in performance, claims for damages for breach of statutory warranty resulting in major defects, and claims for damages for breach of statutory warranty which result in defects which are not major defects, the whole application will not be outside of the jurisdiction of the Tribunal merely because the application was commenced more than two years after the commencement of the warranty period. 45 Rather, the Tribunal will not have jurisdiction in respect of the claims for breach of statutory warranty in respect of defects which are not major defects. Provided the application is commenced within three years after the last date on which building services were supplied, the Tribunal will have jurisdiction with respect to the claim for damages for delay and, provided the application is commenced within six years after the commencement of the warranty period, the Tribunal will have jurisdiction in respect of the claims for breach of statutory warranty which result in major defects." 1. The appellant submitted: "[T]he Appeal Panel assumed that s 48K(3) did not extend to claims for breaches of statutory warranties … But again, this reasoning was not directed to the issue before the Tribunal and was obiter." 1. The appellant also referred to three decisions of the Court of Appeal in which the appellant submitted the Court had "assumed in passing references in obiter dicta without reasoning that s 48K(3) does not apply to a claim for breach of statutory warranty". Those cases were Atkinson v Crowley [2011] NSWCA 194 at [27]; Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 at [38] (Bailey); and Dyldam Developments Pty Ltd v The Owners Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327 at [45]. 2. The appellant submitted that the Appeal Panel should "correct an assumption in the law that appears not to have been examined at an appellate level and, on further examination, is not one that can be sustained in light of the principles of statutory interpretation." The Proper Construction of s 48K – Respondent's submissions 1. The respondent submitted that, regardless of the correct construction of s 48K, the Tribunal had jurisdiction to transfer the proceedings, and that the correct construction of s 48K was thus not relevant to the issue that the Tribunal had to determine. 2. In relation to the correct construction of s 48K the respondent submitted that each of Diao and Jones v Panchal were considered decisions of the Appeal Panel. The respondent further submitted that those decisions concluded that, on the proper construction of s 48K, the Tribunal did have jurisdiction over a claim for breach of statutory warranty resulting in a major defect if the claim was brought within six years of the completion of the work. 3. The respondent also referred to decisions of the Consumer Trader and Tenancy Tribunal (CTTT) approved in Jones v Panchal, which had held that s 48K(3) did not limit the jurisdiction of the Tribunal in respect of claims for breach of statutory warranty (ie Marks v Stafflair [2012] NSWCTTT 199 and Tinsley v Masterton Homes Pty Ltd [2013] NSWCTTT 26). 4. The respondent further submitted that, if the appellant was correct, it would mean that s 48K(7) would have no work to do; and that s 48K(7) was a specific provision while s 48K(3) was a general provision, so that s 48K(3) should be construed as not operating where s 48K(7) applies. 5. In oral submissions, but not in its written submissions, the respondent submitted that s 48K(3) was not applicable to an action by an owners corporation against a builder or developer, as such a claim was not in respect of building goods and services supplied "to or for" the owners corporation. The Proper Construction of s 48K – Appellant's submissions in reply 1. The appellant submitted in reply that it was not correct to say that, on its interpretation of s 48K, subs (7) would be left with no work to do. The appellant submitted that subs (7) would have an operation in relation to claims in respect of breaches of statutory warranties which did not result a major defect, where it would operate to reduce the time within which a claim might be commenced in the Tribunal to two years rather than the three provided in subs (3). 2. In response to the submission that s 48K(7) was a specific provision overriding s 48K(3) the appellant submitted: "That argument is inconsistent with the rest of the respondent's submissions, which are to the effect that they cover different fields. In any event, on the appellants construction, there is no conflict, with the consequence that the need to resolve conflict does not arise." The Proper Construction of s 48K – Consideration 1. We do not accept the appellant's submissions concerning the interpretation of s 48K. 2. We do not accept that the prior decisions of the Appeal Panel can be reconciled with the appellant's submissions. In particular, the Appeal Panel in Jones v Panchal undertook a detailed examination of the terms of s 48K and the conflicting decisions of the CTTT. 3. Moreover, in Jones v Panchal, the Appeal Panel, at [29], endorsed the reasons of the Tribunal at first instance, extracted at [28] which included paragraphs [48] – [49]: "48. The jurisdiction of the Tribunal specified under section 48K of the Act differentiates between the different types of building claims, or causes of action. There is no justification for interpreting Home Building Applications, being proceedings under the NCAT Act, as if they are merely 'building claims' as defined under section 48A of the Act. 49. It is entirely appropriate for the Tribunal, in the Consumer and Commercial Division of NCAT, when dealing with a Home Building Application, to assume jurisdiction over a number of different building actions each of which might be subject to different limitation periods for the commencement of the claims." 1. The significant conclusions of the Appeal Panel appeared at [44] to [45], which we have set out above (at [50]). The Appeal Panel continued: "46 The clear statutory intention that s 48K should be so construed is, in our view, apparent from a number of circumstances. 47 The first such circumstance is that the construction propounded by Mr Lonergan would severely limit the jurisdiction of the Tribunal for no obvious purpose. The clear intention of the legislation is that the Tribunal should have jurisdiction to determine claims in respect of major defects when those claims are brought within six years. If that time period is to be truncated to two years whenever a claim is also brought in respect of defects which are not major defects, or three years if a claim is made for breach of contract not involving a statutory warranty, the number of cases in which the Tribunal would have jurisdiction to determine claims involving major defects would be substantially reduced. … 52 Although Mr Lonergan is correct in suggesting that, on the construction he propounds, it could not be said that the provisions of ss 48K(7) and 18E would have no work to do, the operation of those provisions would nevertheless be severely truncated." 1. Those reasons are equally applicable in respect of the construction of s 48K supported by the appellant. 2. In particular, although the appellant is correct in submitting that its preferred interpretation would not leave s 48K(7) with no work to do, it would give it a substantially limited operation. It may also be noted that, before the amendment of s 18E in 2012 [1] to introduce the two-tiered classification of defects (initially structural defects and other defects, and subsequently major defects and other defects [2] ) the appellant's construction of s 48K would have left s 48K(7) with no work (or practically no work) to do. 3. Prior to 2012, s 48K(7) provided that the Tribunal did not have jurisdiction in respect of a building claim arising from a breach of statutory warranty if the claim was lodged more than seven years after the work was completed. On the appellant's construction of s 48K the only cases where the Tribunal would have had jurisdiction in respect of claims for breach of statutory warranty commenced more than three years after work was completed would have been cases where, for example because the claimant was a successor in title to the person to or for whom building goods and services were provided, subs (3) was not applicable. 4. Although the terms of s 48K(7) were amended in 2012 [3] , the general structure of s 48K did not vary and there was no amendment to the provisions of s 48K(3). 5. In our view there is no conceivable reason why s 48K(7) would have been included in the HBA to address such a limited range of circumstances. Nor is there any rational explanation why cases involving successors in title should be capable of being brought in the Tribunal three or four years after an identical claim by the original owner ceased to be within jurisdiction. 6. It is a general principle of statutory interpretation that a court, or tribunal, must "strive to give meaning to every word of [a statutory] provision": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]; Todorovska v Brydens Lawyers Pty Ltd (2022) 108 NSWLR 147; [2022] NSWCA 47 at [76]. 7. An interpretation which gives only a trivial operation to a provision of a statute should also be avoided. This is particularly so when s 48L of the HBA provides: 48L Tribunal to be chiefly responsible for resolving building claims (1) This section applies if a person starts any proceedings in or before any court in respect of a building claim and the building claim is one that could be heard by the Tribunal under this Division. (2) If a defendant in proceedings to which this section applies makes an application for the proceedings to be transferred, the proceedings must be transferred to the Tribunal in accordance with the regulations and are to continue before the Tribunal as if they had been instituted there. (3) This section does not apply to matters arising under sections 15, 16 or 25 of the Building and Construction Industry Security of Payment Act 1999. (4) This section has effect despite clause 6 (Transfer of proceedings to courts or to other tribunals) of Schedule 4 to the Civil and Administrative Tribunal Act 2013. 1. Although the heading to s 48L is not taken to be part of the HBA (Interpretation Act 1987 (NSW) s 35(2)), it nevertheless constitutes material which may be taken into account in the interpretation of the HBA where a provision is ambiguous or obscure (Interpretation Act s 34(1)(b)(i) and (2)(a), s 35(5)). In any event, the substantive provisions of s 48L are themselves indicative of the statutory intention expressed in the heading. 2. In our view, properly interpreted, where each of subss 48K (3), (4), (6), (7) and (8) states that the Tribunal does not have jurisdiction in respect of a particular class of case, it is implicit that each class of case stands independently, and the categories of claim listed in the separate subsections are intended to be mutually exclusive. We do not accept the appellant's submission that such an interpretation of s 48K requires the reading of words into the section. It is merely, as the respondent submits, an application of the maxim, generalia specialibus non derogant or an analogous principle. The general provision limiting the jurisdiction of the Tribunal in s 48K(3) does not limit the jurisdiction of the Tribunal in respect of the specific matters the subject of a different limitation in s 48K(7). 3. As Megarry J held in No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] Ch 229 at 235: "the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not." 1. That reasoning is equally applicable to exclusions from a grant of jurisdiction. The Tribunal is granted jurisdiction by s 48K(1). Subsections 48K(3), (4), (6), (7) and (8) each exclude a category of case from that grant. The wide exclusion in subs (3) should be treated as not applicable to cases within the limited exclusion in subs (7). 2. Accordingly, the Tribunal has jurisdiction in respect of a claim for breach of statutory warranty resulting in a major defect, provided the claim is brought in the Tribunal within six years after the completion of the work. Claims for breach of statutory warranty are not categorised as claims relating to building goods or services that have been supplied. 3. Our conclusion in this regard is reinforced by the fact that the same conclusion has been assumed without any question by the three Court of Appeal decisions referred to by the appellant. 4. It follows that the Tribunal was not deprived of jurisdiction in respect of the respondent's claims for breach of statutory warranty by s 48K(3) of the HBA. 5. In light of our conclusion in this regard, it is not strictly necessary to consider whether the claim brought by the respondent would fall within s 48K(3) even on the appellant's construction. Nevertheless, we note that in Atkinson v Crowley, where the respondents (the Crowleys) had purchased a house from the appellants, one of whom had constructed the house as an owner-builder, Basten JA (with whom Giles and Young JJA agreed) held, at [28]: "[W]hile it is arguable that sub-s (3) [of s 48K] was engaged, because the claim related to 'building goods or services', it is unclear whether they were services 'supplied to or for the claimant', the claimant being the Crowleys, who did not undertake the building work, nor arrange for it to be undertaken." 1. In our view it cannot be said that goods and services are supplied "to or for" an owners corporation which is not in existence at the time the relevant work is performed. It is not necessary for present purposes to attempt to define exhaustively when goods and services are supplied "to" or "for" a person. The second issue – Has the relevant time limit expired? Has time expired? - Appellant's submissions 1. If the appellant's submissions concerning the correct construction of s 48K were accepted, the time for commencement of proceedings in the Tribunal had clearly expired before the respondent commenced the proceedings. However, we have not accepted those submissions. 2. In that event, the appellant submitted that the Appeal Panel would need to classify each of the defects alleged by the respondent as major or minor. The appellant submitted: "[I]t would be far preferable to determine this issue by reference to a proper evidentiary foundation, which appears to be possible only if the proceedings are remitted. However, if the Appeal Panel disagrees, then the appellant's position is that none of the defects are major. That is because it is obvious from the photographs annexed to the respondent's expert report that the building is still occupied by residents, who continue to go about their daily lives in the building: …. That being so, it strains credulity to suggest that any of the requirements for any of the defects to be major are met. In other words, it is highly unlikely that residents would be permitted to live in the building when the defects have caused or are likely to cause (i) an inability to inhabit or use the building or part of the building for its intended purpose; (ii) the destruction of the building or any part of the building; or (c) a threat of collapse of the building or any part of the building: …. It is also highly unlikely that the respondent would have waited nearly six years to commence these proceedings if the defects met any of these descriptions. As a result, the Appeal Panel should infer that none of the defects are major, with the consequence that (on the assumption that s 48K(7) applies) it holds that the Tribunal does not have jurisdiction in respect of the claim under s 48K(7)." Has time expired? - Respondent's submissions 1. The respondent disputed that the Tribunal is required to classify the defects alleged by the respondent into major and minor defects. The respondent submitted that the critical question was not whether the respondent will succeed in recovering more than $500,000 but whether the amount claimed by the respondent exceeds $500,000. 2. The respondent submitted that having the Tribunal determine, as a pre-condition to an order transferring the proceedings to a court, whether the respondent would succeed in an amount greater than $500,000 is not in accordance with the guiding principle in s 36 of the NCAT Act, that is, "to facilitate the just quick and cheap resolution of the real issues in the proceedings". Has time expired? - Appellant's submissions in reply 1. The appellant submitted in reply: "17 The respondent's submission on the consequence of the application of s 48K(7) to its claim is misconceived. According to the respondent, the appropriate way of determining whether it was in time to have commenced proceedings is to simply look at what the respondent claims: …. However, that terminology of 'amount claimed' comes from s 48K(1), which is not the provision in issue. The provision in issue is 48K(7), which stipulates that the Tribunal 'does not have jurisdiction in respect of a building claim arising from a breach of statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E)'. Section 18E(1) provides that 'proceedings must be commenced before the end of the warranty period for the breach' and s 18E(2) provides that 'the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case'. In light of these provisions, the respondent's construction cannot be sustained: a. First, it is entirely contrary to the text of s 18E. Section 18E fastens to 'a breach that results in a major defect', not 'a breach that is claimed to result in a major defect'. With the words it uses, s 18E sets the appropriate time period by reference to the actual character of the defect (minor or major), not simply what an applicant claims it to be. b. Secondly, the respondent's construction would denude the time limitation for minor defects set by s 18E of any work to do. If the respondent's construction were accepted, it would just mean that applicants could bypass the time limitation relating to minor defects by simply claiming them to be major. And because the respondent treats an applicant's 'claim' as determinative, there would be nothing a respondent or a Tribunal could do to counter such a claim. That result deprives s 18E of its intended work and creates manifest injustice. The respondent's construction should therefore be rejected. 18 Once it is accepted that the application of s 48K(7) requires factual findings about the nature of the defects claimed by the respondent (whether they are minor or major), the respondent confronts some serious difficulties. The evidence falls far short of establishing that most or all of the defects it claims are major. At the least, because the correct approach to determining whether the Tribunal loses jurisdiction under s 48K(7) is to consider defects individually, much (if not all) of the respondent's claim is out of time: see [Jones v Panchal] at [44] to [45]. That has two consequences. 19 First, if the Appeal Panel decides that the Tribunal cannot transfer proceedings under sch 4, cl 6 of the CAT Act 'in respect of' which it has no jurisdiction (that is, it decides the third issue favourably to the appellant), then the appellant wholly succeeds on this appeal, because the proceedings cannot be transferred as there are least parts of them outside the Tribunal's jurisdiction. 20 Secondly, even if the Appeal Panel decided the third issue unfavourably to the appellant, the fact that the respondent in all probability will never come close to hitting the jurisdictional limit of $500,000 is a factor that weighs strongly against transferring the proceedings on this basis. That is a factor to which the Appeal Panel must have regard if it chooses to determine the respondent's transfer application for itself." Has time expired? - Consideration 1. in our view the appellant's submissions conflate two issues, that is, whether the Tribunal has jurisdiction to determine a claim in respect of a particular alleged defect, and whether the Tribunal has jurisdiction to consider the respondent's claim as a whole. 2. Unless no defect alleged by the respondent is a major defect, the Tribunal has jurisdiction (subject to the monetary limit of $500,000) to determine the respondent's claim with respect to those defects which are major defects. 3. The question for determination when the Tribunal is considering an application to transfer proceedings is whether the interests of justice require the transfer. 4. In BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 (BKB) the Appeal Panel held, at [76]: "In making a decision whether or not to transfer proceedings, there is a wide discretion to take into account any relevant matter (Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [4)]. The fundamental consideration is whether there is 'sufficient cause'; 'sound ground'; or 'good reason' for the transfer to be made. That permits a wide range of discretionary considerations. Those considerations may be impressionistic and evaluative (Australian Timber Supplies Pty Ltd v Agia [2014] NSWSC 1308 at [2]). Where there is a significant risk the jurisdictional limit will be exceeded; or whether the Tribunal has jurisdiction at all, are important considerations (BOC v MDL [2019] NSWSC 278 at [17]-[19]; Hua Shan v Fairfield City Council [2020] NSWSC 681 at [14]; Breecass Pty Ltd v The Owners-Strata Plan No 61419; The Owners-Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23)". 1. The Tribunal must take into account the provisions of s 48L, which would suggest that, if the applicant's building claim is "one that could be heard by the Tribunal" under s 48K, it should not be transferred. However, the Tribunal is not required to determine on a final basis whether the Tribunal has jurisdiction to determine the whole claim. The question is rather whether the material before the Tribunal suggests that there is a sufficient likelihood, that the Tribunal will not have jurisdiction to determine the whole claim, to warrant the transfer of the proceedings to a court which will have such jurisdiction. 2. In this regard we note the statement of Schmidt J in The Owners – Strata Plan No 70030 v Decon Australia Pty Ltd [2014] NSWSC 347 (Decon) at [79]: "79 The defendants submitted that even if the amendment application had been made, it would have been refused for three reasons. The first, because the expert's costings were unintelligible and would have had to be better expressed, to be of assistance to the Tribunal. That submission cannot be accepted. Evidence explaining why the amendment was sought and the transfer application should be granted was what was then required, not proof that a claim exceeding the statutory limit could thereby be established at any hearing." 1. Decon involved a challenge (by way of judicial review) to a decision of the CTTT to dismiss proceedings pursuant to s 30 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act) [now repealed but the equivalent of clause 10 of Schedule 4 to the NCAT Act] in circumstances where the applicant had applied for an order that the proceedings be transferred to the Supreme Court. Schmidt J held that the applicant (plaintiff in the Supreme Court) was denied procedural fairness because the Tribunal had heard the respondents' application for the dismissal of the proceedings without determining the application for transfer. 2. Schmidt J held at [58] – [76]: "58 The making of an application to the Tribunal was governed by s 24 of the Consumer, Trader and Tenancy Tribunal Act, which required an application to be made in writing, in accordance with the Regulations. In cases brought under s 48K of the Home Building Act it was the application which commences the proceedings on which the Tribunal's jurisdiction rested. That section empowers the Tribunal to deal with 'any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000'. 59 The plaintiff's application was made in 2009 by the filing of a printed form entitled 'application for an order'. There was no question that it fell within the Tribunal's jurisdiction, being for a 'building claim' as defined in s 48K of the Home Building Act, for an amount of $329,005. It has never been amended. 60 It follows that, contrary to the case advanced for the plaintiff in these proceedings, unless the claim brought before the Tribunal was amended to increase it beyond the statutory limit of $500,000, the proceedings remained within the Tribunal's jurisdiction. 61 That was not how the plaintiff perceived the legislative scheme. It relied on its new expert's statutory declaration to provide a basis for its transfer application, taking the view that his advice that what was claimed would amount to some $1.8 million, was a sufficient basis to bring the claim beyond the Tribunal's jurisdiction. That is not how the Home Building Act operates. Section 48K confines the Tribunal's jurisdiction under the Act to claims brought to the Tribunal which fall below the specified amount, not the advice on which those claims rest. … 64 Transfer of the proceedings to this Court would have resulted in the proceedings effectively starting again, as the defendants complained. The Tribunal had power to dismiss proceedings under s 28(5)(i) of the Act upon sufficient reason being established. Such reasons may include findings under s 30 that the proceedings have been conducted so as to unreasonably disadvantage another party. That power may, however, only be exercised in relation to a claim which is within the Tribunal's jurisdiction. 65 Had the Tribunal determined that it had jurisdiction over the matter, it had to consider what the substantial merits of the case required, given the competing applications which the parties were pursuing. If what was demanded in the circumstances which had arisen was that the application be transferred to this Court, the transfer application would have been allowed. Had justice demanded that it be refused, the transfer application would have been dismissed. … 72 It was within the Tribunal's power to transfer the proceedings and to amend the application at any time. Amendment of the claim depended on the plaintiff convincing the Tribunal that it was 'necessary in the interests of justice' for the application to be amended. It does not appear to have been suggested that the plaintiff's problems as to the amount of its claim were of its making. They appear to have been the result of ongoing problems with its experts and representative error. That was relevant to its transfer application. 73 The plaintiff had conceded at the hearing before Senior Member Smith that the new expert's declaration could not provide an evidentiary basis upon which its claim could be decided, given its form. Nevertheless, it revealed the basis upon which the expert had advised the plaintiff of his view that its claim amounted to some $1.8 million, not the $395,000 claimed in the original application. Thereby the plaintiff had served the information which the second defendant submitted in these proceedings it would have had to provide them as to its amended claim, namely what it was and how it differed from the original claim, if leave to amend were to be entertained. 74 The Tribunal was entitled as a matter of procedure to hear the transfer application without requiring the plaintiff to do more by way of formalising either that application, or any application for leave to amend the application which had commenced the proceedings (see s 28(2) and (3) and s 29 (1) and (4)). Had any formality been considered necessary, that could have been dealt with on 18 February, had Senior Member Smith heard the transfer application, as he indicated that he would, before dismissing the proceedings and had the amendment point then been relied on by the defendants. 75 What approach the defendants, the plaintiff or the Tribunal would have taken, if the defendants had pressed its reliance on the absence of an application for leave to amend the claim, cannot be known, because the transfer application was not heard. Any application then made for leave to amend the claim would have had to have been dealt with in accordance with s 28(3) namely, "with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". 76 In the circumstances, the point, while important, was clearly a technical one. It is difficult to see that the plaintiff could have justly been denied at least the opportunity to seek leave to amend its claim to support its transfer application, had it been sought." 1. As we understand the reasons of Schmidt J in Decon, a building claim commenced in the Tribunal seeking an amount less than $500,000 remains within the jurisdiction of the Tribunal unless and until the application is amended to increase the amount sought to a sum greater than $500,000. 2. The Tribunal is not a forum where the rules of strict pleading apply. Nevertheless, the form of application by which proceedings are commenced requires a party seeking an order for the payment of money to specify the amount claimed, and procedural fairness also requires that parties in the Tribunal disclose their case to ensure the other parties are not taken by surprise, and, where pleadings have been filed, parties may be held to them (Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 at [60] – [68] and [75] – [77]). 3. The decision in Decon at [65] is authority for the proposition that the Tribunal may decline to transfer proceedings where the party seeking the transfer would be denied leave to make an amendment to their case, for reasons other than the fact that the amendment would take the case outside the Tribunal's jurisdiction. See also The Owners Strata Plan 83405 v Ralan (Culworth) Pty Ltd [2019] NSWSC 578 at [64] – [65] and [98]. 4. As the Tribunal held at first instance in this matter, where an amendment to an application would be allowed were it not for the fact that the amendment would take the proceedings outside the Tribunal's jurisdiction, it is not necessary that a party applying to transfer proceedings to a court make a formal application to amend their case before an order for transfer can be made. We do not understand the decision of Schmidt J in Decon to hold otherwise. The Tribunal is required "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" (NCAT Act s 38(4)). What is essential, when a party seeks the transfer of proceedings to a court on the basis that it has now identified that its claim will exceed the Tribunal's jurisdiction, is a clear indication that the party seeks to maintain a claim in excess of the jurisdictional limit and sufficient evidence to establish that the claim the party seeks to maintain is likely to exceed that limit. 5. The appellant's submission in reply that the respondent's submissions concerning the interaction of ss 48K and 18E "would denude the time limitation for minor defects set by s 18E of any work to do", betrays a misunderstanding of the operation of those two provisions and clause 6 of Schedule 4. Section 18E does not operate by reference to whether the applicant claims that a defect is a major defect. The time limitation for the commencement of proceedings in respect of breaches of statutory warranty operates by reference to the objective circumstance whether the breach results in a major or minor defect. 6. The basis upon which the respondent sought, and the Tribunal made, an order transferring the proceedings to the District Court was that the amount claimed (or to be claimed) by the respondent exceeded $500,000. Provided the applicant for transfer puts forward credible evidence that the amount of its claim will exceed $500,000, then, subject to discretionary considerations arising from the party's conduct of the proceedings to that time, it would ordinarily be appropriate to make an order for transfer to a court so that the applicant is able to pursue the whole of its claim. 7. The appellant's submissions in chief concerning the likelihood that the defects alleged by the respondent are major defects also proceed on a misconception of the operation of s 18E. It is not necessary for the purposes of this decision to explain in detail why the submissions (which we have set out above, at [82]) are misconceived, it is sufficient to refer to the judgment of Harrison AsJ in Stevenson v Ashton [2019] NSWSC 1689, at [61] – [76] in particular. In short, because the definition of a major defect includes circumstances which are "likely to result" (but may not yet have resulted) in the serious consequences listed, including "the inability to inhabit or use the building (or part of the building) for its intended purpose", the identification of major defects is not inconsistent with the continued occupation of the building. 8. An applicant seeking to transfer proceedings to a court on the basis that they have identified that their claim is likely to exceed the monetary limit of the Tribunal's jurisdiction must do more than simply make that assertion. Some evidence that the claim will exceed the monetary jurisdiction will be necessary, but, as the respondent submits, it would not be consistent with the guiding principle for the Tribunal to be required to undertake a detailed examination of that evidence. A fortiori it would not be consistent with the guiding principle for the Tribunal to hold a contested hearing into the evidence. 9. While it is not appropriate that the Appeal Panel undertake a detailed analysis of the expert evidence relied upon by the respondent to support its submission that its claim was likely to exceed $500,000, we do note that, as noted above, Mr Blaszczakiewicz referred in his affidavit to "more major structural defect issues." A brief perusal of the building defects report attached to Mr Blaszczakiewicz's affidavit discloses that he identified numerous instances of water penetration and cracking in structural elements. 10. In our view the evidence provided by the respondent was sufficient to establish for the purposes of the application to transfer that the respondent's claim was likely to exceed the jurisdiction of the Tribunal, so that the transfer of the proceedings to the District Court was appropriate. Third issue – Jurisdiction to transfer 1. We have concluded that the Tribunal was not deprived of jurisdiction "in respect of" the respondent's claim by subss 48K (3) or (7) of the HBA. Accordingly, it is not strictly necessary to determine whether, if the Tribunal was so deprived of jurisdiction, it was nevertheless empowered to transfer the proceedings to the District Court. 2. However, the issue was fully argued and it is important to the conduct of proceedings in the Tribunal. Therefore, we have addressed the issue. Jurisdiction to transfer – Appellant's submissions 1. The appellant submitted: "32. The starting point is that 'in respect of' in s 48K(3) and (7) has a wide meaning. Generally, the phrase 'in respect' has conceptually 'the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer': Doughty v Martino Developments Pty Ltd (2010) 27 VR 400 at [6], citing State Government Insurance Office v Rees (1979) 144 CLR 549 and Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45, 47-48. The width of that phrase is supported by its use in context. Where s 48K confers jurisdiction on the Tribunal, it uses the more limited language of giving jurisdiction 'to hear and determine any building claim'. Where s 48K deprives the Tribunal of jurisdiction, it uses the significantly wider language of removing jurisdiction 'in respect of' a building claim. The combined effect of these textual considerations is that the removal of jurisdiction from the Tribunal by s 48K (3) and (7) extends beyond the determination of the ultimate controversy in proceedings to anterior, interlocutory steps." 1. The appellant referred to paragraphs [51] and [52] of the Appeal Panel decision in S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190, where the Appeal Panel noted that the effect of the Supreme Court decision in Vero Insurance Ltd v Buckle [2008] NSWSC 73 (which held that if a claim was not brought in the Tribunal within the period specified in s 48K(3) "there is no jurisdiction to entertain it") was that subss 48K (3), (4), (6) and (7) are preconditions to the exercise of the Tribunal's jurisdiction. 2. The appellant submitted that, consistently with that conclusion: "[T]he Tribunal losing jurisdiction under s 48K (3) or (7) means that it does not have jurisdiction to entertain the claim, which it would do if it makes interlocutory decisions with respect to the claim." 1. The appellant submitted: "As a result, the better view is that when the Tribunal made the transfer order, it exercised jurisdiction 'in respect of' the respondent's claim. To transfer proceedings is to exercise jurisdiction in respect of them: McIntosh v National Australia Bank (1988) 17 FCR 482 at 483". 1. The appellant submitted that, by reason of subss 48K(3) or (7), "that was not a course that the Tribunal was authorised to take". 2. The appellant sought to distinguish the Appeal Panel decision in Wilson v Chan & Naylor [2018] NSWCATAP 311, which held, at [56], that "the Tribunal may transfer proceedings before it to a court notwithstanding that the Tribunal does not have jurisdiction to hear and determine the application", on the basis that: "[T]he problem in this case is not that the Tribunal does not have jurisdiction to hear and determine the respondent's claim. The problem is that the Tribunal does not have jurisdiction 'in respect of' the respondent's claim, which is a far wider concept. In any event, the Appeal Panel in Wilson appears not to have been taken to the previous authorities cited in these submissions. Wilson therefore does not assist the respondent." 1. The appellant also noted the Appeal Panel decision in BKB in which, the appellant noted: "the Appeal Panel appears to have implicitly accepted at [80] that the Tribunal could transfer proceedings over which it lacked jurisdiction because of s 48K". The appellant submitted that the issue arising in the present proceedings does not appear to have been argued and that "the Appeal Panel appears not to have been taken to the previous authorities cited in [the appellant's submissions]". Jurisdiction to transfer - Respondent's submissions 1. The respondent submitted that the appellant had failed to consider Bailey, which the respondent submitted was "the most important authority on the question of jurisdiction". The respondent referred to paragraphs [55] and [57] in the decision of Sackville JA (with whom Basten and Meagher JJA agreed). It is convenient to set out paragraphs [55] – [57]: "55 A tribunal has jurisdiction to decide for itself whether the conditions necessary for it to hear and determine a dispute have been satisfied. Generally speaking, the tribunal's decision on such a question is not conclusive and may be challenged on appeal or on an application for judicial review: Mutual Life & Citizens' Assurance Co Ltd v Attorney-General (Qld) [1961] HCA 51; 106 CLR 48, at 56, per Dixon CJ (with whom Taylor and Windeyer JJ agreed); The Queen v Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190, at 202-203, per Barwick CJ; M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action , 4 th ed (2009) Thompson Reuters, at 804-805. However, if a jurisdictional issue is litigated as a preliminary issue in the Tribunal and full advantage is taken of the opportunities for appeal and judicial review, statutory objectives are likely to be frustrated. 56 The Tribunal in the present case made a direction by consent that what it described as the " limitation issue " be the subject of a one day hearing, presumably as a preliminary issue. It is not clear whether the parties gave any consideration to the desirability of deferring the jurisdictional question, resting as it does on contested factual (as well as legal) questions, until the hearing of the claim itself. Such a course would have ensured or at least made it more likely that the jurisdictional question would be resolved with the benefit of all evidence in the case and in a manner that avoided prolonged interlocutory disputation. .… 57 The jurisdictional issue that the Tribunal had to confront was not strictly a limitation question, although the Tribunal's jurisdiction was dependent upon the claims being lodged within a specified period from the date the relevant residential building work was complete. The observations of Barwick CJ in R v Federal Court suggest that a court can postpone resolution of a jurisdictional issue until " the probable existence or non-existence of the fact or situation [determination of jurisdiction] has emerged ": at 206. It is true that Barwick CJ was speaking of proceedings in the High Court challenging the jurisdiction of the Federal Court to hear a matter. Nonetheless, in principle there is no reason why similar considerations should not influence an inferior court or tribunal required to consider a jurisdictional challenge. If the challenge is more conveniently dealt with when all the evidence has been adduced, the tribunal would be entitled to take that course, provided it does not make orders beyond jurisdiction in the meantime." 1. The respondent submitted: "84. Sackville [JA]'s comments must be understood to mean that the Tribunal is entitled to determine its own jurisdiction. 85. A practical and important reality of why this must be the correct interpretation that the Tribunal can transfer proceedings for which it does not have jurisdiction is in respect of s 48K(1). 86. It is commonplace that proceedings commenced in NCAT are below the jurisdictional limit of $500,000, and on the provision of additional evidence it becomes apparent that the quantum will exceed that figure. 87. If the Appellant's interpretation was followed, it would mean that any case involving a matter where the quantum exceeds $500,000 (which only becomes known sometime after commencement) could never be transferred to the District Court. 88. This cannot be the intention of the provision." 1. We note that at the hearing the appellant appeared to concede that its submission concerning the inability of the Tribunal to transfer proceedings in respect of which it does not have jurisdiction was not applicable or relevant in relation to proceedings which are not within the Tribunal's jurisdiction because the amount claimed exceeds the jurisdictional limit imposed by s 48K(1). 2. The respondent referred to subss 29 (1) and (2) of the NCAT Act, which provide: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if— (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction— (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. The respondent emphasised the conferral by subs 29(2)(a) of the jurisdiction to make "ancillary and interlocutory decisions". 1. The respondent submitted that the Appeal Panel should accept Wilson v Chan & Naylor as authority for the proposition that the Tribunal has jurisdiction to transfer proceedings even where it does not have jurisdiction to hear and determine the matter. 2. The respondent also referred to Draybi Bros Pty Ltd v Diab [2014] NSWCATCD 67 at [126] where Principal Member Harrowell held, in considering an application for transfer to a court, pursuant to s 23 of the CTTT Act, of proceedings commenced in the CTTT, that: "Where, by reason of the limitations in s 48K the Tribunal has no jurisdiction to hear a case, the Tribunal may transfer the application to a court which has jurisdiction". 1. In that case the proceedings were excluded from the jurisdiction of the Tribunal by s 48K (3) or (8). Orders were made transferring the proceedings to the District Court. 2. The respondent further submitted that, if the Tribunal were not empowered to transfer the proceedings to the District Court and the Tribunal is deprived of jurisdiction pursuant to s 48K(3), the respondent would suffer substantial disadvantage, because the respondent is out of time to commence fresh proceedings in the District Court. Jurisdiction to transfer - Appellant's submissions in reply 1. In reply the appellant submitted that the respondent's submissions "in the main" did not address the appellant's central submission. 2. In respect of the respondent's reliance upon Bailey, the appellant submitted: "The effect of Bailey, according to the respondent, is that 'the Tribunal is entitled to determine its own jurisdiction' … So much may be accepted. … However, it is not true that 'a practical and important reality' entailed by this fact is that 'the Tribunal can transfer proceedings for which it does not have jurisdiction' … It amounts to saying that because the Tribunal can determine its own jurisdiction, it obtains jurisdiction to transfer proceedings in respect of which it does not have jurisdiction. That is a nonsense and should be rejected. The correct answer is that the Tribunal has power to determine whether it has jurisdiction to transfer proceedings in the present case, having regard to s 48K of the Home Building Act and sch 4, cl 6 of the CAT Act. Whether it does actually have that jurisdiction is answered by reference to the proper construction of those provisions, not the Tribunal's power to determine its own jurisdiction." 1. The appellant affirmed that it does not submit that there would be any obstacle to the Tribunal transferring a claim where the amount claimed exceeds $500,000, because the transfer does not amount to hearing and determining the claim. The appellant submitted, however, that subss 48K (3) and (7) remove jurisdiction "in respect of" a claim, which is a broader concept. 2. The appellant submitted that the Tribunal's jurisdiction to make ancillary and interlocutory decisions did not confer jurisdiction to make orders in proceedings in respect of which the Tribunal had no jurisdiction. 3. The appellant submitted that Wilson v Chan & Naylor also had nothing to say about the capacity of the Tribunal to make orders transferring proceedings where the Tribunal does not have jurisdiction in respect of the matter by reason of s 48K (3) or (7). Wilson v Chan & Naylor arose under s 79L of the Fair Trading Act 1987 (NSW), which provides that the Tribunal does not have jurisdiction "to hear and determine a consumer claim" if either of two time limitations has expired. However, we note that the transfer order was made by the Appeal Panel because the matter the subject of the transfer order involved federal jurisdiction, not because the application was out of time under s 79L (see [53] – [54]). 4. Finally, the appellant submitted that injustice to the respondent is irrelevant to the construction of the provisions under consideration. Jurisdiction to transfer - Consideration 1. In our view, the Tribunal has power, pursuant to clause 6 of Schedule 4 to the NCAT Act, to transfer proceedings to a court even where the Tribunal has concluded that it does not have jurisdiction in respect of those proceedings by virtue of the provisions of one of subss 48K (3), (4), (6), (7) or (8). 2. The wording of those subsections does not explicitly deny the Tribunal the power to transfer proceedings over which it does not have jurisdiction by virtue of one of those subsections to a court, pursuant to clause 6 of Schedule 4 to the NCAT Act. 3. The circumstance that the Tribunal identifies that it does not have jurisdiction with respect to a matter by virtue of one of those subsections is an obvious case in which the interests of justice would suggest the Tribunal should have power to transfer proceedings to a court which does have jurisdiction. In our view, it is a circumstance in which, subject to the discretionary factors referred to at [96] and [99] above, the power to transfer should be exercised. 4. Although the injustice to the respondent if the Tribunal could not transfer the proceedings is not a matter relevant to the interpretation of s 48K, the injustice which would occur to an applicant who could not commence fresh proceedings because the relevant limitation period had expired, is a factor which can legitimately be taken into account when considering the intention of Parliament in enacting s 48K. 5. The judgment of Sackville JA in Bailey at [55] to [57], and [57] in particular, suggests that the Tribunal's interlocutory and ancillary jurisdiction extends to making such interlocutory decisions as are necessary to prepare a matter for final hearing, not just on the question of jurisdiction, but on all issues. That is implicit in his Honour's suggestion that the determination of the question of jurisdiction can be deferred until all evidence has been adduced. 6. If the denial of jurisdiction in respect of the matter meant that the Tribunal could not make a transfer order, it is not clear why the Tribunal would be able to make orders requiring parties to produce documents or to allow access for inspection, both orders being, in appropriate circumstances, necessary in order that an application can be prepared for final hearing. 7. Although the comment of Gummow J in McIntosh v National Australia Bank (1988) 17 FCR 482 (McIntosh) at 483, cited by the appellant, appears, prima facie, to hold that if a court or tribunal does not have jurisdiction in respect of a proceeding it has no power to order the transfer of the proceeding, that comment was made in a particular context. His Honour was considering whether the Commonwealth Constitution authorises the enactment by the Commonwealth Parliament of a provision empowering the Federal Court to transfer proceedings outside its jurisdiction to a State Supreme Court. His Honour held, at 483: "But there is difficulty construing s 86A(1) [of the Trade Practices Act 1974 (Cth)] as authorising the transfer of a matter for determination in the proceeding in this Court, being a matter not within the accrued jurisdiction and being a matter in respect of which this Court has no jurisdiction. If that matter was not within the accrued jurisdiction, it would not fall within any of the heads in ss 75 and 76 of the Constitution (Cth). Then in its operation in such cases, s 86A(1) of the TP Act would not be a law defining the jurisdiction of this Court or investing any State court with federal jurisdiction, within the meaning of s 77 of the Constitution. That section confers power on the Parliament to make laws, with respect to any of the matters mentioned in ss 75 and 76 of the Constitution, which, inter alia define the jurisdiction of this Court or invest a State court with federal jurisdiction. If it were to be construed as suggested, s 86A(1) would go beyond the operation of a law within the scope of s 77 of the Constitution. The incidental power in s 51 (xxxix) of the Constitution would not appear to support a law authorising a federal court to exercise jurisdiction (whether by transferring the proceedings or deciding them itself) in respect of matters outside federal jurisdiction … To remit or transfer a proceeding is to exercise jurisdiction in respect of it" 1. The contrast between that situation and that which arises where a question as to jurisdiction arises in proceedings in the Tribunal is demonstrated by comparison between the comments of Sackville JA in Bailey at [56] - [57] and the comment of Gummow J in McIntosh at 484: "[Q]uestions of the existence of jurisdiction should be dealt with decisively and not by asking questions as to the existence of an arguable or clear case for or against the existence of jurisdiction. Where the issue arises as to whether federal jurisdiction has been attracted, that issue should, if practicable, be determined summarily and without delay, not left as a question mark stamped on the proceedings, for decision at some later stage …" 1. We consider that the circumstances such as were considered by Gummow J in McIntosh, where there was a constitutional barrier to the enactment of legislation empowering the Court to transfer the proceedings to a State court, are clearly distinguishable from the position of the Tribunal, where the legislature has specifically (and validly) conferred upon the Tribunal the power to transfer proceedings to a court. 2. In our view the third issue raised by the appellant was fully answered by the Appeal Panel in Wilson v Chan & Naylor at [56]: "In our view, the Tribunal may transfer proceedings before it to a Court notwithstanding that the Tribunal does not have jurisdiction to hear and determine the application. The respondents submitted the contrary, relying upon the decision in [Qantas Airways Limited v Lustig [2015] FCA 253; 228 FCR 148]. In that case, Perry J said that if the Tribunal has no jurisdiction over any part of the proceedings, there is no matter before it to refer to a Tribunal or Court (#108). However, at #109, her Honour said that it was possible for a State to have legislated to confer powers on the Tribunal to transfer part or all of proceedings instituted in the Tribunal, but over which it lacks jurisdiction, to another Court or decision-making body. Her Honour went on to say that there was nothing conferring such power in the relevant legislation (that is the legislation providing powers to the Victorian Tribunal known as VCAT). In our view, in the case of NCAT the position is different. Clause 6 of Sch 4 of the NCAT Act enables NCAT to transfer proceedings to a Court that has jurisdiction in the matter. That power arises if the parties agree to the proposed transfer, or if the Tribunal of its own motion, or on the application of a party, so directs." 1. By enacting clause 6 of Schedule 4 to the NCAT Act, the Parliament of NSW has conferred upon the Tribunal the power to transfer proceedings to a court, even when the Tribunal does not have jurisdiction in respect of the proceedings. 2. The Appeal Panel's decision in Wilson v Chan & Naylor was the subject of appeal to the Supreme Court and again to the Court of Appeal, but only in relation to orders concerning costs. No issue "as to the authority of the Appeal Panel to order the transfer of the proceedings to the Local Court" arose in either appeal. (See Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 per White JA at [80]) Conclusion 1. Although we have concluded that the Tribunal erred in concluding that the respondent's application was not a "building claim" and that s 48K was not applicable to it, we do not consider that the Tribunal erred in ordering that the proceedings be transferred to the District Court. As we have held above, the respondent had adduced credible evidence that its claim was likely to exceed the monetary limit of the Tribunal's jurisdiction. Neither s 48K(3) nor s 48K(7) prevented the Tribunal making an order pursuant to clause 6 of Schedule 4 to the NCAT Act. 2. The issues raised by the appellant are of sufficient importance and general application that it is appropriate to grant the appellant leave to appeal. Accordingly, we will grant leave to appeal, but, as we have not accepted the appellant's submissions, we will dismiss the appeal. 3. The parties indicated that they wished to be heard in relation to the costs of the appeal and we will make orders providing for the filing of written submissions concerning costs. Subject to any submissions from the parties the Appeal Panel will determine any application for costs on the basis of the written submissions and without a further hearing. ORDERS 1. Our orders are: 1. Grant the appellant leave to appeal. 2. The appeal is dismissed. 3. Either party may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, and any evidence relied upon in support, seeking an order in relation to the costs of the appeal. 4. If either party files submissions pursuant to order (3), the other party may file and serve submissions not exceeding five pages in response to any such submissions, and any evidence relied upon in support, within a further 14 days. 5. Any submissions filed in accordance with orders (3) and (4) should address the issue whether the question of costs can be determined on the basis of the written submissions and without a further hearing. 6. If neither party files submissions in accordance with order (3) there will be no order in relation to the costs of the appeal. ********** Endnotes 1. Home Building Act Amendment Act 2011 (NSW), Sch 1 [13]. 2. Home Building Act Amendment Act 2014 (NSW), Sch 1 [28], [29]. 3. Statute Law (Miscellaneous Provisions) Act 2012 (NSW), Sch 1.16 [4]. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2023