The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578

Supreme Court New South Wales

Medium Neutral Citation: The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578 Hearing dates: 16 August 2018 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: The Court orders that:

(1) The plaintiff's application for leave to appeal the decision of the Appeal Panel of the Civil and Administrative Tribunal dated 6 December 2017 in proceedings numbered AP 17/40943 pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) is refused.

(2) The plaintiff's application for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) is refused.

(3) The plaintiff's amended summons filed 23 February 2018 is dismissed.

(4) The plaintiff is to pay the defendant's costs on an ordinary basis. Catchwords: ADMINISTRATIVE LAW – Judicial review – Construction of Home Building Act 1989 (NSW), s 48K – Jurisdiction of Civil and Administrative Tribunal of NSW – Whether the Tribunal had jurisdiction to deal with claim for an amount exceeding $500,000 – Whether the Appeal Panel fell into error in refusing the plaintiff's application to transfer proceedings to the Supreme Court – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW)

PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Test to be applied by the Tribunal when considering a transfer application based on jurisdiction – Test to be applied by the Tribunal when granting leave – Considerations relevant to an application for adjournment – Whether the Tribunal failed to properly consider cl 6(1) Sch 4 of the Act Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) , ss 34, 36, 38, 80, 81, 82, 83 Civil Procedure Act 2005 (NSW), ss 58, 140 Home Building Act 1989 (NSW), s 48K Supreme Court Act 1970 (NSW), s 69 Cases Cited: Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 Aon Risk Services Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; (2003) 202 ALR 450 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Collins v Urban [2014] NSWCATAP 17 Coulter v R [1988] HCA 3; 164 CLR 350 Davis v NSW Land and Housing Corporation [2016] NSWCA 325 He v Yeung [2015] NSWCA 392 House v The King (1936) 55 CLR 499 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; (1997) 141 ALR 353 The Owners – Strata Plan 70030 v Decon Australia PL [2014] NSWSC 347 The Owners – Strata Plan 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536 Texts Cited: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) at [17.90]. Category: Principal judgment Parties: The Owners Strata Plan 83405 (Plaintiff) Ralan (Culworth) Pty Limited (First Defendant) NSW Civil and Administrative Tribunal (Second Defendant) Representation: Counsel: S Foda (Plaintiff) M Sheldon (First Defendant)