John Predl and Megan Predl v Dartanyon Pty Ltd and Greg Kellner [2015] NSWCATCD 36

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: John Predl and Megan Predl v Dartanyon Pty Ltd and Greg Kellner [2015] NSWCATCD 36 Hearing dates: On the papers Decision date: 24 March 2015 Jurisdiction: Consumer and Commercial Division Before: P. Boyce, Senior Member Decision: The application for transfer of the proceedings to a court is refused Catchwords: Is interpretation of term of Contract for Sale of Land disclosing defects and remediation within Tribunal jurisdiction as part of building claim? Display home, successor in title, building claim, transfer to Court. Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd and Ors (2004) NSWSC 765 Draybi Bros Pty Ltd v Bede Diab John Maklouf Jihad Dib Mohammed Chahrouk [2014] NSWCATCD 67 Provincial Homes v Doyle and Ors [2004] NSWSC 624 May v Christodoulou [2011] NSWCA 75 Commonwealth v Verwayen [1990] HCA 39 Phillips v Martin (1890) 11 NSWLR 153 Allianz v Waterbrook [2009] NSWCA 224 Category: Procedural and other rulings Parties: John Predl and Megan Predl (applicants) Dartanyon Pty Ltd and Greg Kellner Representation: Solicitors: Meehans Solicitors (applicant) Marsdens Law Group (respondents) File Number(s): HB 13/66780 Publication restriction: Unrestricted

REASONS FOR DECISION 1. The respondents seek an order from the Tribunal that pursuant to clause 6(1)(a) and (b) of Part 5 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 that the application filed by the applicant be transferred to the District Court of NSW and that the proceedings continue in that Court as though the proceedings had been instituted there. 2. The applicant opposes the respondents' application. 3. Both parties have made submissions to the Tribunal in support of their positions. 4. The respondents make submissions in general terms that there are "legal and jurisdictional issues highlighted…concerning the Application, the Points of Claim, the Points of Defence and the overarching ability of the Tribunal to determine the subject matter of the dispute, it would appear for these matters be determined by a Court". 5. To consider the respondents' submissions the nature of the dispute needs to be identified. 6. The background of the dispute is as follows: 1. The first respondent was the builder of a display home at Harrington Park in about 2010. 2. The second respondent purchased the property from the first respondent in about October 2012. 3. The applicants purchased the property from the second respondent by contract dated 3 May 2013 for a price of $1,200,000. 4. The Contract provided for a three month defects warranty period from the date of the completion of the contract. 5. The Contract was completed on 17 May 2013. 6. The applicants claim that the residential dwelling is defective and that they are entitled to obtain the benefit of the statutory warranties contained in s 18B of the Home Building Act 1989. 7. The applicants filed their claim against the first respondent on 24 December 2013. 8. On 20 March 2014 the Tribunal made directions for the exchange of documents on which the parties intended to rely at the hearing and the filing and service of a Scott Schedule and response to the Scott Schedule. The Tribunal amended the respondent's name by replacing Dartanyon Pty Ltd with Greg Kellner. 9. The time for compliance with the Tribunal's directions was extended by the Tribunal on 29 April 2014. 10. The applicant sought a further extension of time to comply with the Tribunal's directions on 20 May 2014. 11. The time for compliance with the Tribunal's directions was extended again by the Tribunal on 30 May 2014. 12. The respondent sought an extension of time to comply with the Tribunal's directions on 19 June 2014. 13. The time for compliance with the Tribunal's direction was extended again by the Tribunal on 4 July 2014. 14. On 4 September 2014 the Tribunal vacated the earlier directions and a new timetable was set by the Tribunal. Dartanyon Pty Ltd was re-joined as a respondent with Greg Kellner. 15. On 22 September 2014 the applicants sought an extension of time to comply with the directions. 16. On 29 September 2014 the Tribunal refused the extension of time. 17. On 30 October 2014 the Tribunal reset the timetable for compliance with the directions and refused the respondents application to dismiss the application for want of prosecution.. 18. On 3 November 2014 the respondent filed their response to the Scott Schedule and on 20 November 2014 their defence to the applicant's points of claim. 19. On 21 November 2014 the Applicants filed the documents on which they rely. 20. On 28 November 2014 the applicants filed their points of claim. 21. On 6 February 2015 the respondents filed their submission in relation to the transfer of the proceedings to the District Court. 22. On 17 February 2015 the respondents filed their amended points of defence. 23. On 20 February 2015 the applicants filed their response to the application for the proceedings to be transferred to the District Court.