Amirbeaggi v NSW Self Insurance Corporation

[2023] NSWCATCD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATCD 171

Hearing dates:

13 July 2023

Date of orders:

04 October 2023

Decision date:

04 October 2023

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Senior Member

Decision:

(1) Subject to order (2) below, pursuant to Clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act the proceedings are to be transferred to the District Court of NSW (in accordance with the rules of that court), and to continue before that court as if the proceedings had been instituted there.

(2)   The operation of order (1) is suspended for 14 days from the date of these orders.

(3)   Subject to orders (4)-(6) below, the applicants are to pay the respondent’s costs of the Application for Miscellaneous Matters filed on 4 July 2023 and any costs thrown away by reason of the applicants’ commencement of proceedings in the Tribunal. Such costs are to be as agreed between the parties or as assessed.

(4)   Either party may file and serve upon the other party within 14 days of the date of these orders submissions, not exceeding 5 pages, seeking an alternative order regarding costs.

(5)   In the event a party files submissions in accordance with order (4) above, order (3) above will cease to have effect and the other party may, within a further 14 days, file and serve submissions in response, not exceeding 5 pages.

(6)   Submissions strictly in reply, not exceeding 3 pages, may be filed and served within a further 7 days.

(7)   Submissions filed pursuant to orders (4) and (5) above must address the question whether the question of costs can be determined on the basis of the written submissions and without a hearing.

Catchwords:

CIVIL PROCEDURE – Jurisdiction – Transfers to and from courts – Application to transfer proceedings to the District Court – Whether second application after first application dismissed was an abuse of process – Whether applicants had sufficiently raised claims exceeding the monetary jurisdiction of the Tribunal – Whether applicants had provided evidence that their claims exceeded the monetary jurisdiction of the Tribunal

Legislation Cited:

Australian Consumer Law

Australian Securities and Investments Commission Act 2001 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Fair Trading Act 1987 (NSW)

Home Building Act 1989 (NSW)

Home Building Regulation 2014 (NSW)

Insurance Contracts Act 1984 (Cth)

NSW Self Insurance Corporation Act 2004 (NSW)

Cases Cited:

Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259

Bale v Mills [2011] NSWCA 226

Brown v The Owners - Strata Plan No 82527 [2022] NSWCATAP 328

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 400 ALR 1

Glenella One Pty Ltd v Duncan [2015] NSWSC 165

Grygiel v Baine [2005] NSWCA 218

Hawli v NSW Self Insurance Corporation [2017] NSWCATCD 38

JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501

Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37

Nardell Coal Corporation Pty Ltd (recs & mgrs appointed) (in liq) v Hunter Valley Coal Processing Pty Ltd [2003] NSWSC 642

Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 122

Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 252

Category:

Procedural rulings

Parties:

Farshad Amirbeaggi and Brooke Maniscalco (Applicants)
NSW Self Insurance Corporation (Respondent)

Representation:

Counsel: M Klooster (Applicants)
T Porman, solicitor (Respondent)

Solicitors: Yates Beaggi (Applicants)
Hicksons Lawyers (Respondent)

File Number(s):

HB 22/30996

Publication restriction:

Unrestricted

REASONS FOR DECISION

Introduction

1. The matter before me requiring determination is an Application for Miscellaneous Matters filed by the applicants in these proceedings on 4 July 2023. By that application the applicants seek:

“1   Leave to amend the points of claim in the form annexed and marked “A”

2    The proceedings be transferred to the District Court of New South Wales, Sydney

2[sic]    The respondents pay the applicant’s cost of this application.”

2. The power of the Tribunal to transfer the proceedings to a court in an appropriate case arises from clause 6(1) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which 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.

Background

3. The applicants commenced these proceedings in the Tribunal on 8 July 2022 seeking the sum of $340,000 pursuant to a policy of insurance (the Policy) issued by the respondent in accordance with the provisions of the Home Building Act 1989 (NSW) (HBA).

4. The respondent is a statutory body representing the Crown in right of NSW, constituted by s 4 of the NSW Self Insurance Corporation Act 2004 (NSW).

5. The sum of $340,000 is the limit of cover pursuant to the Policy.

6. The applicants attached points of claim to their application which alleged:

1. That the applicants had entered into a building contract with Matrix Group Co Pty Ltd (Matrix).

2. That Matrix had commenced building pursuant to the contract on 2 November 2016

3. That on 30 August 2017 the applicants and Matrix had entered into a variation which involved further contract terms:

1. Matrix and the applicants would share the cost of completing any rectification work equally

2. that the time for practical completion of the building works be extended to 31 October 2017 (which date was subsequently extended to 22 December 2017)

4. That on 30 December 2017 the applicants had issued a breach notice under the contract

5. That Matrix suspended work on 5 February 2018

6. That the applicants terminated the contract on 22 February 2018

7. That the works performed by Matrix pursuant to the contract were defective in breach of the implied statutory warranties arising under s 18B of the HBA.

8. That the respondent had issued a contract of Homeowners Warranty Insurance with respect to the works the subject of the contract between the applicants and Matrix on 24 November 2017

9. That the period of cover under the insurance contract in respect of non-structural defects expired on 5 February 2020

10. That the period of cover in respect of structural defects will expire on 5 February 2024

11. That on 6 November 2019 the applicants lodged a claim with the respondent under the contract of insurance and that the applicant provided further documentation on 19 November 2019

12. That the respondent “will be deemed to refuse a claim if a determination is not made within 90 days after the claim is made, subject to any agreement by the Applicants to extend such time for determination.” (I note that in fact clause 5.3(c) of the Policy provided that the respondent was deemed to have accepted liability for the claim if written notice of a decision in relation to the claim was not given to the applicants within 90 days of the applicants lodging the claim or such further time as may be agreed between the parties.)

13. That extensions were granted on 3 February, 21 March and 14 April 2022, pursuant to which the time for the respondent to notify a decision in relation to the claim was extended to 30 June 2022.

14. That on 23 June 2022 the respondent sought a further extension of time for the determination of the claim to 31 August 2022

15. That on 24 June 2022 the applicants refused to grant any further extension.

16. That on 29 June 2022 the respondent denied the claim.

7. Regulation 49 of the Home Building Regulation 2014 (NSW), as in force on 8 July 2022 provides:

49   Insurance appeals

(1) An appeal against a decision of an insurer that is a building claim made under Part 3A of the Act or a claim under the Consumer Claims Act 1998 must be made not later than 45 days after written notice of the decision is given to the beneficiary.

(2)  Nothing in subclause (1) limits the time within which an appeal may be made if a claim is taken to have been refused because of the operation of clause 48 and written notice of a decision has not been given to the beneficiary.

(3)  However, an appeal may, with the leave of the Tribunal or court, be lodged with the principal registrar of the Tribunal or court after the end of the period referred to in subclause (1), if—

(a)  an application is made to the Tribunal or court for leave to lodge the appeal out of time, and

(b)  in the opinion of the Tribunal or court, there are special circumstances to grant leave, and

(c)  the Tribunal or court grants leave.

(4)  Without limiting the type of circumstances that may be considered special circumstances, the time taken for a decision to be reviewed by the insurer is a factor in determining special circumstances.

8. The application was listed in the Tribunal for directions on 8 August 2022. On that occasion directions were made that the respondent file Points of Defence by 5 September 2022.

9. Order 3 required the applicants to file their evidence by 12 September 2022.

10. Order 4 required the respondent to file its evidence by 24 September 2022.

11. On 13 September 2022, the time for compliance with orders 3 and 4 was extended by consent to 7 October 2022 and 21 November 2022 respectively.

12. On 6 September 2022 the respondent filed points of defence alleging:

1. That the notification of claim was out of time for any potential claim for loss or damage arising from non-completion of work;

2. That the supporting documents received from the applicants mixed claims for non-completion and claims for defective works;

3. That the applicants had engaged subsequent builders to attempt to rectify and/or complete the works and had not provided full details of the intervening works;

4. That inspection by the respondent has suggested that some of the intervening works had caused or contributed to the defects now complained of by the applicants.

13. The respondent did not admit that the applicants were entitled to the amount claimed and alleged that further investigation was required.

14. On 31 October 2022 the application was listed for further directions. On that occasion, a Senior Member of the Tribunal made orders including:

“2. On or before 14 November 2022, the applicants are to file and serve further amended points of claim addressing jurisdictions issues together with an application to transfer the proceeding to a court of competent jurisdiction (transfer application) with supporting evidence and written submissions for the transfer application.”

15. On 1 November 2022 the Tribunal issued a Notice of Directions Hearing to take place on 8 December 2022.

16. On 16 November 2022 the applicant filed a document headed “Applicants’ Submissions on Jurisdiction”, to which was attached a document titled “Amended Points of Claim”.

17. The Amended Points of Claim purported to join two further respondents, Gallagher Bassett Services Pty Ltd, the respondent’s claims assessor, and Hicksons Lawyers, the respondent’s solicitors.

18. The Amended Points of Claim set out details of communications between the applicants and representatives of the respondent during the period between 19 November 2021 and 24 June 2022 and included the following:

“87   After filing of the Points of Defence [Hicksons Lawyers] repeatedly represented to the Applicants that upon the provision of payment records for losses incurred by the Applicants full payment pursuant to the claim would be made.

…

91   The First Respondent's delay in processing of the Claim, representations made as to the meeting of the Claim, subsequent denial, and subsequent failure to continue the claims processing, making offers to settle the Claim at a substantial reduction against the coverage afforded under the Contract of Insurance or loss suffered by the Applicants are in the circumstances pleaded:

91.1 in bad faith,

91.2 false and misleading,

91.3 unconscionable.

…

94    By reason Of the First Respondent's … breaches and contraventions the Applicants have suffered the loss and damage (Loss or Damage).

Particulars

94.1 Costs of completing the Works.

94.2 Costs of identifying and determining the method of rectification for the Defects.

94.3 $408.079.39 for completion and rectification of the Works as identified in the Expert Report of Adam Perigo dated 21 March 2019.

94.4 $156,300.35 for rectification of the Works pursuant to the Second Event.

94.5 Costs, losses, and liabilities yet to be incurred with respect to defects in the Works not yet undertaken.

94.6 Loss by way of alternative accommodation.

94.7 Holding and interest costs incurred with respect to the Property whilst the completion and rectification of Works are undertaken.

94.8 In the alternative, the diminution in value of the Property due to the Defects.

94.9 Loss of opportunity to affect the rectification works and affect a sale of the Property in a buoyant real estate market.

94.10 Legal and other reasonable costs incurred pursuing Matrix in the Local Court, District Court of New South Wales, Supreme Court of New South Wales, and Supreme Court, Court of Appeal with respect to the incomplete and defective Works or protecting a progress claim.”

19. The respondent filed “Submissions on Jurisdiction” on 29 November 2022, which pointed out that there was no order of the Tribunal joining the additional parties to the proceedings. The respondent also noted that the applicants were in default of the timetable which required them to file their evidence by 12 September 2022 [extended by consent to 7 October 2022].

20. On 7 December 2022 the applicants filed an Application for Miscellaneous Matters which sought an order that the proceedings be transferred to the Federal Court of Australia.

21. The applicants did not press that application at the directions hearing on 8 December 2022. On that occasion, the Tribunal made orders: adjourning the matter to a date to be fixed; reserving the costs of the directions hearing; making directions fixing a timetable for the exchange of submissions concerning the costs of the proceedings; and noting that:

“At the next hearing the Tribunal will consider any costs application of the respondent and, if the proceeding has not been withdrawn by the applicant in the meantime, the Tribunal’s jurisdiction to hear and determine the applicants’ claim.”

22. On 8 December 2022 the Tribunal issued a Notice of Directions Hearing on 24 February 2023.

23. On 30 January 2023 the applicants’ solicitors forwarded a letter to the Tribunal attaching a draft District Court Statement of Claim. The letter sought “written confirmation that the Tribunal declines to accept the Application as per the Amended Claim as it invokes federal jurisdiction so that [the applicants] may proceed to apply to the District Court of New South Wales under the provisions of s 34B of the [NCAT] Act.”

24. The draft Statement of Claim attached to the letter included, in addition to the claim for payment under the insurance policy, claims for damages for contravention of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s 18 of the Australian Consumer Law (ACL).

25. On 31 January 2023 the respondent filed submissions seeking an order for the costs of the proceedings in the event the applicants elected not to proceed in the Tribunal. In those submissions the respondent’s solicitors noted that on 30 January 2023 they had received an email from the applicants stating that the applicants would not be withdrawing the proceedings but would be filing fresh proceedings in the District Court and “by Motion transferring the NCAT proceedings to those proceedings.”

26. On that date the respondent also filed Points of Defence to the Amended Points of Claim.

27. The Defence to the Amended Points of Claim maintained the allegations pleaded in the original Points of Defence and additionally maintained that the additional two parties named in the Amended Points of Claim had not been joined to the proceedings and that the allegations made against those “non-parties” were “irrelevant to the HBCF dispute yet to be decided by the Tribunal”. The Defence also referred to an offer made by the respondent on 7 November 2022.

28. On 23 February 2023 the applicants filed an Application for Miscellaneous Matters seeking orders that the proceedings be transferred to the Supreme Court of New South Wales, on the grounds that the sum claimed exceed the monetary threshold of the Tribunal and that the issues to be determined “attract Equitable and or Federal jurisdiction”.

29. The applicants filed at the same time “Supplementary submissions on jurisdiction” and a draft Supreme Court Statement of Claim. The content of the draft Supreme Court Statement of Claim did not differ substantially from the draft District Court Statement of Claim previously filed in the Tribunal.

30. On 24 February 2023 a Senior Member of the Tribunal made directions:

“1.   The applicants are to file and serve by 21 April 2023:

(1)   an application setting out the orders sought with respect to the further conduct of the proceedings;

(2)   in the event the applicant seek an order for leave to file an amended points of claim, their proposed amended points of claim, including the amount claimed and how that amount has been calculated;

(3)   any evidence in support of the orders sought with respect to the further conduct of the proceedings including evidence substantiating the amount of the claim in the event that the claim in the proposed amended points of claim is for an amount in excess of $500,000, which is to be way of affidavit or expert report;

(4)   written submissions in support of the orders sought with respect to the further conduct of the proceedings which are to be limited to five pages.

2.   The respondent is to file and serve by 2 June 2023:

(1)   any evidence in opposition to the orders sought by the applicants with respect to the further conduct of the proceedings, which is to be way of affidavit or expert report;

(2)    written submissions in opposition to the orders sought by the applicants with respect to the further conduct of the proceedings, which are to be limited to five pages.

3.    A hearing is dispensed with in relation to the application of the applicants referred to in order 1(1) above.

4.   The Tribunal notes that the applicants have not obtained the leave of the Tribunal to join any additional respondents.”

31. On 7 June 2023 a Senior Member of the Tribunal published a decision: dismissing the application by the applicants that the proceedings be transferred to the Supreme Court; ordering the applicants to pay the respondent’s costs of the proceedings after 31 October 2022 on the ordinary basis as agreed or assessed; directing the applicants to file and serve by 4 July 2023 “any Amended Points of Claim against the respondent” and the documents on which they wish to rely at the hearing of the application; directing the respondent to file by 1 August 2023 “Points of Defence to any such Amended Points of Claim” and the documents on which they wish to rely at the hearing; and directing the registry to relist the matter for directions as soon as possible after 1 August 2023.

32. In its reasons for decision, the Tribunal set out the history of the proceedings and summarised the parties’ respective submissions. The Tribunal noted the respondent’s submission:

“(1) that this application is vexatious, otherwise misconceived and/or lacking in substance, (2) that there has been a want of prosecution, (3) that the assertion of a jurisdictional issue is colourable, and (4) that there is no evidence that the quantum of the claim exceeds $500,000, and (5) that the policy limit is $340,000.”

33. In respect of the assertion that the applicants’ claim exceeded $500,000, the Tribunal noted: “[D]espite a clear direction, made on 24 February 2023, for the provision of evidence on that aspect, no such evidence has been provided.”

34. In respect of the submission that the Tribunal did not have jurisdiction to determine the claims which the applicants sought to pursue based on the ACL and the ASIC Act, the Tribunal found:

“14. … As the Tribunal has jurisdiction to hear claims under the ACL, that does not warrant the application being transferred unless the jurisdictional limit of $100,000 is exceeded and, again, there is no evidence of that.

15. A consideration of the reliance on the ASIC Act suggests it overlaps the claim based on the ACL in that the factual allegations put would, if established, entitle relief under the ACL which would remove the need to rely on the ASIC Act.

16. Further, the basis of the claim under the ASIC Act appears to relate to the proposed third respondent and, as has been indicated more than once, the proposed third respondent is not a party to these proceedings. It is to be noted that the proposed third respondent is the firm of solicitors who have been acting in these proceedings for the sole respondent.”

35. The Tribunal concluded:

“18. This application began as a claim by homeowners against an insurer, based on the provisions of the Home Building Act 1989. It appears the applicants now wish to additionally allege they have suffered damages due to the conduct of that insurer, a claim that can be accommodated by reference to the provisions of the ACL. There is no evidence that both those matters cannot be heard and determined in these proceedings.

19. The Tribunal is not satisfied that the applicants have established that this application should be transferred to a court. The position may have been clearer (1) if the applicants had filed Amended Points of Claim which were confined to their case against the existing respondent, and (2) if the applicants had complied with the order to provide evidence in support of their application. It appears that the addition of a claim under the ASIC Act is a colourable claim which seeks to add such a claim to an ACL claim for the purpose of being able to assert that the Tribunal lacks jurisdiction.

20. As was noted by a Tribunal member on 8 December 2022, it is open to the applicants to withdraw their claim. However, they commenced a claim against a single respondent and have not yet progressed that claim despite the passage of almost a year since the application was lodged on 9 July 2022.

21. For these reasons, the application to transfer these proceedings to the Supreme Court is refused.”

36. On 8 June 2023 the Tribunal listed the proceedings for further directions on 3 August 2023.

37. On 4 July 2023 the applicants filed the further Application for Miscellaneous Matters.

38. The stated grounds for the application are the same as those relied upon in support of the miscellaneous matters application filed on 23 February 2023, that is:

“1 The sum claimed exceeds the monetary threshold of the Tribunal.

2 The issues to be determined attract equitable and or federal jurisdiction.”

39. The applicants attached to the application for miscellaneous matters a document headed “Amended Points of Claim”. I will refer to that document in these reasons as the “Proposed Amended Points of Claim”. I will refer to the Amended Points of Claim filed on 16 November 2022 as the “Filed Amended Points of Claim”.

40. On 6 July 2023 the Tribunal made directions:

“The applicant seeks transfer of the proceedings to the District Court of New South Wales. A previous transfer application was dismissed on 7 June 2023. The transfer application will be listed for hearing on 13 July 2023. The following orders are made accordingly.

1. Unless the applicants have already served a copy of the application for miscellaneous orders filed on 4 July 2023 (the transfer application) on the respondent, the applicants are to do so immediately.

2. By 9 am on 10 July 2023, the applicant is to file and serve evidence and submissions in support of the application.

3. By 4 pm on 12 July 2023, the respondent is to file and serve evidence and submissions in response to the transfer application.

4. All evidence is to be in the form of a statutory declaration or affidavit.

5. All documents are to be provided in an indexed, tabbed and paginated hard copy bundle contained in a ring binder or like device, delivered to the Tribunal's Sydney Registry.

6. The Tribunal notes:

(a) The applicants have not fully complied with order 4 made on 7 June 2023 in that they have not filed the documents on which they seek to rely at the hearing of the substantive application;

(b) In circumstances where the substantive application has been before the Tribunal for over 12 months, if the transfer application is unsuccessful, the final hearing of the substantive application will be listed at the earliest opportunity; and

(c) It remains open to the applicants to withdraw these proceedings and commence proceedings against the respondent (and any other entities against which the applicants consider they have a cause of action) in a court of competent jurisdiction.”

41. On 10 July 2023 the applicants filed an outline of submissions and an affidavit affirmed by Mr Amirbeaggi on 10 July 2023, together with Exhibit FA-2 to that affidavit. Included in exhibit FA-2 were affidavits of:

1. Mr Adam Perigo, a construction manager and quantity surveyor;

2. Mr Edward Brincat, a building consultant and civil engineer;

3. Mr Mark Ellis, a valuer; and

4. Mr Ian Tucker, a quantity surveyor and building estimator.

42. Each of those affidavits was sworn on 7 July 2023 and attached one or more reports expressing the deponent’s opinion on matters apparently within his expertise.

43. The respondent filed submissions in response on 12 July 2023.

The applicants’ submissions

44. The application for miscellaneous matters was listed before me on 13 July 2023. At the hearing, Mr Klooster, of counsel, who appeared for the applicants, relied upon the outline of submissions filed by the applicants on 10 July 2023 and upon each of the affidavits filed by the applicants.

45. The applicants’ outline of submissions commenced:

“1.   The Applicants say that the Tribunal does not have jurisdiction to determine these proceedings because:

1.1   the monetary limit of the Tribunal to determine consumer and commercial matters, of $500,000, is exceeded.

1.2   the monetary limit of the Tribunal to determine claims under the Fair Trading Act 1987, of $40,000, is exceeded.

1.3   the Application includes claims for inter alia bad faith, unconscionable conduct, and misleading conduct made under the provisions of the Insurance Contracts Act 1984 (ICA), Competition and Consumer Act 2010 (ACL), the Australian Securities and Investments Commission Act 2001 (ASIC Act), and in Equity, each of which are either federal matters or ones that must be determined in a Court.

1.4   The Application includes claims for:

1.4.1    $340,000 being the monetary limit under the Contract of Insurance,

1.4.2    $250,113.50 loss and damages for bad faith, unconscionable conduct, misleading conduct, or equitable damages,

1.4.3    $550,000 in penalties available for breach of the ICA,

1.4.4 Further penalties available for breach of the ACL, or ASIC Act.

1.5   Presently the Applicants' claims aggregate to approximately $1,140,113.50.”

46. It is appropriate to note immediately a number of matters in relation to that submission:

1. First, I note that the Tribunal does not possess a distinct jurisdiction to determine “consumer and commercial matters”. Presumably the applicants intended to refer to the Tribunal’s jurisdiction to determine “building claims”, as defined in the HBA, which is limited to claims where the amount sought does not exceed $500,000. The applicants’ claim under the Policy is a building claim by virtue of s 48K(2)(a) of the HBA.

2. Secondly, I note that the limit of the Tribunal’s jurisdiction pursuant to section 79J of the Fair Trading Act 1987 (NSW) has, since 18 July 2022, been $100,000. However, because these proceedings were commenced before that date, the limit on the Tribunal’s jurisdiction in these proceedings has not been increased and remains $40,000: Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259 at [56] – [62].

3. Thirdly, I note that neither the Filed Amended Points of Claim nor the Proposed Amended Points of Claim claims any relief pursuant to the Insurance Contracts Act 1984 (Cth) or makes any claim for the imposition of penalties under the ACL or the ASIC Act. For that reason, I do not consider it necessary to determine whether the applicants have identified any proper foundation for the making of claims for the payment of penalties, or whether the inclusion of claims for penalties in proceedings seeking damages or compensation is appropriate (cf Brown v The Owners - Strata Plan No 82527 [2022] NSWCATAP 328 at [40]). Nor do I consider it necessary to determine whether claims made by the applicants against the respondent in reliance upon the Insurance Contracts Act would invoke Federal jurisdiction, notwithstanding that the respondent is a state insurer and not subject to the Insurance Contracts Act by virtue of s 9(2) of that Act.

4. Fourthly, I note that, although both the Filed Amended Points of Claim and the Proposed Amended Points of Claim allege that the contract of insurance issued by the respondent was a “financial product” within the meaning of s 12BAA of the ASIC Act and that the services provided by the respondent are “financial services” within the meaning of s 12BAB of the ASIC Act, and the Proposed Amended Points of Claim purports to seek damages pursuant to s 12GF of the ASIC Act, they do not directly plead the basis upon which the respondent is said to be liable to the applicant pursuant to s 12GF of the ASIC Act. In particular, although s 12GF is applicable where a person suffers loss or damage by reason of conduct of another person that contravenes a provision of ss 12CA to 12CC or ss 12DA to 12DN of the ASIC Act, neither the Filed Amended Points of Claim nor the Proposed Amended Points of Claim contains any allegation of breach of any of those provisions of the ASIC Act.

5. Fifthly, I note the terms of s 12BAA(8) of the ASIC Act, which provides:

“Despite anything else in this section, the following are not financial products for the purposes of this Division:

…

(c)   State insurance or Northern Territory insurance, including insurance entered into by:

(i) a State or Northern Territory; and

(ii) some other insurer,

as joint insurers;”

If policies of insurance issued by the respondent are not “financial products” within the definition in s 12BAA of the ASIC Act, the issue of contracts of insurance by the respondent will not be “financial services” for the purposes of s 12BAB.

47. In the absence of any reasoned basis for any allegation that the respondent is liable to the applicants pursuant to the ASIC Act, I regard the applicants’ assertion of claims pursuant to the ASIC Act to be no more than a colourable attempt to attract federal jurisdiction.

48. It follows that the only bases upon which the applicants might seek compensation from the respondent, other than under the Policy, are pursuant to the ACL or under the general law. The ACL applies as a law of NSW pursuant to s 28 of the Fair Trading Act. It follows that there is no basis for any suggestion that the applicants’ claim raises federal jurisdiction.

49. In so far as the Proposed Amended Points of Claim raises coherent claims under the ACL, those claims appear to arise as follows:

1. The applicants allege that the respondent made representations:

“78.1   That the Claim was being progressed with expedition.

78.2   That the Claim would be paid in full.

78.3    That all information required had been provided by the Applicants to properly determine and assess the Claim.

78.4    That no further information was required by the First Respondent to properly determine and assess the Claim.

78.5    That any further information required to assess the Claim would be requested from the Applicants promptly.”

2. The applicants allege reliance on those representations in that:

“83.   Had the Representations not been made the Applicants would:

83.1    Have carried out further Remedial Works to make the Property habitable/rentable.

83.2   Sold the Property.”

3. The applicants allege that the representations were misleading and deceptive or likely to mislead or deceive and that they suffered loss by reason of their reliance upon the representations which they particularise as follows:

“(i)   The increase in cost to now carry out the Remedial Works as opposed to the cost to carry out the Remedial Works in June 2022.

(ii)   Holding costs of the Property on and from completion of the Remedial Works, assuming they had commenced in or around June 2022.

(iii)   Increased holding and interest costs incurred with respect to the Property whilst the completion and rectification of the Defects and incomplete works forming part of the Works are undertaken.

(iv)   Lost opportunity to sell the Property in a favourable market and obtain a higher sales price than can now be achieved.

(v)   Difference in the sale price obtained by for the Property when sold compared to its sale price had Remedial Works commence in or around June 2022 and the Property placed on the market shortly after completion of the Remedial Works.

(vi)   Further particulars may be provided by way of evidence.”

50. The Proposed Amended Points of Claim also contains allegations of unconscionable conduct (whether under the ACL or the general law or otherwise is not made clear). The damages allegedly flowing from the alleged unconscionable conduct are those pleaded in respect of the alleged misleading and deceptive conduct.

51. Finally the Proposed Amended Points of Claim alleges a promissory estoppel on the basis that the representations allegedly made by the respondent induced an assumption on the part of the applicants that the claim would be assessed promptly and that payment would be made in full in response to the claim, that the applicants acted on that assumption to their detriment, and that it would be unconscionable for the respondent to depart from the assumption. The particulars of detriment provided by the applicants repeat the particulars of loss and damage alleged in respect of the alleged breaches of the ACL.

52. The applicants submitted that the reports of Mr Ellis and Mr Tucker evidenced a loss of at least $250,113.50. Mr Ellis expresses the opinion that the value of the property fell by a substantial amount between March 2022 and December 2022 and would continue to fall and Mr Tucker asserts that the cost of rectification of defects and completion of incomplete work on the applicants’ property increased over the period between March 2022 and March 2023. It would appear that the applicants maintain that the figure of $250,113.50 reflects the diminution in value of the property between March 2022 and June 2023, as assessed by Mr Ellis, and the escalation in rectification and completion costs during 2022, as assessed by Mr Tucker.

53. The applicants submitted:

“10. The Applicants say that leave to file an Amended Points of Claim is not required, was in any event provided by the Orders of Senior Member Charles on 31 October 2022, and if it wasn't that leave should now be granted so that the issues between the parties may be determined in the one proceeding.”

Respondent’s submissions

54. The respondent submitted that leave to file the Proposed Amended Points of Claim should not be granted and that the proceedings should be dismissed, as frivolous, vexatious or otherwise misconceived or lacking in substance, or for want of prosecution. The respondent’s submissions stated:

“4   The conduct of the Applicants in the NCAT proceedings subsequent to filing the Application on 8 July 2022, has included:

(a)   failing to file and serve their supporting evidence by 12 September 2022 (in breach of the Tribunal's 8 August 2022 orders);

(b)   filing Amended Points of Claim on 16 November 2022 (Amended Claim) purporting to introduce jurisdictional barriers to their own Application being determined by the Tribunal and adding additional non-parties without leave;

(c)   failing to simply withdraw their Application (if they considered the jurisdiction no longer applicable);

(d)   failing to remove non-parties from their Amended Claim; and

(e)   erroneously suggesting, and maintaining, that the quantum of any claim can be any more than the $340,000 Policy limit.

5.   In the current two applications …, the Applicants persist with the fiction that there is more than one Respondent — despite being repeatedly told by the Tribunal (and the Respondent's solicitors) that this has never been the case, and despite also being directed to the relevant provisions.

6.   If the Applicants genuinely consider that there is a jurisdictional issue against the sole Respondent, it has always been and remains open to the Applicants to withdraw their Application. However, it is not the role of, nor appropriate for, the Tribunal to attempt to untangle the Amended Claim against multiple non-parties and define what the Applicants' current claim may be against the sole Respondent, particularly when the Applicants were given leave to do this in October 2022 and have repeatedly been granted further opportunities to do so — with the last opportunity granted on 7 June 2023.”

55. The respondent further submitted:

“7.   The second transfer application is an abuse of process in that the Applicants have not addressed their failings for which their first transfer application was dismissed last month.

8.   The only real difference is the destination — the District Court this time, rather than the Supreme Court last time. …”

56. The respondent acknowledged the terms of clause 6(1) of Schedule 4 to the NCAT Act, but submitted:

“10.   However, unless and until the Applicants remove the non-parties from the conflated claim they created post-October, the Tribunal is prevented from determining what if any court (in accordance with the rules of that court) would have jurisdiction in the matter — or even whether there is anything preventing the Tribunal determining the matter.

11.   Senior Member Ellis gave reasons on 7 June 2023 for dismissing the first transfer application including that there was no evidence that the matters as alleged against the Respondent could not be determined by the Tribunal and adding that ‘The position may have been clearer (1) if the applicants had filed Amended Points of Claim which were confined to their case against the existing respondent, and (2) if the applicants had complied with the order to provide evidence in support of their application.’

12.   While the Applicants have forwarded what they perceive to be evidence, it does not relate to any claim ‘confined to their case against the existing respondent' and, as such, does not assist.

13.   The Applicants have failed to remedy the deficiencies in their Amended Claim, nor substantially change the circumstances, since their first application to transfer was dismissed; and this second application is an abuse of process in that regard and, in any event, should also be refused / dismissed.”

57. The respondent submitted that, despite almost 9 months having elapsed since the applicants were granted leave to amend their claim in October 2022, the applicants had failed to comply with their duties under s 36(3) of the NCAT Act “to cooperate with the Tribunal to give effect to the guiding principle, and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal.”

58. The respondent submitted that:

“[B]y ignoring orders (for almost 9 months) to properly constitute any amended claim against the sole Respondent and to file evidence in support of that claim, the Applicants have breached their obligations under s 36(3) of the Act and also failed to progress the matter”.

59. The respondent maintained that the applicants, “realising that they had filed in the wrong jurisdiction” should have withdrawn their application and filed their claim in whatever they considered to be the correct jurisdiction. The respondent submitted that, the applicants having failed to do so, their application should be considered frivolous, misconceived and lacking in substance.

60. The respondent submitted, in the alternative, that:

“[I]f the Tribunal considered that a claim against the respondent can still be discerned and that it may raise a jurisdictional issue, … That would only be in a ‘colourable’ sense … In that it was made for the purpose of fabricating a jurisdictional issue.”

The respondent referred to Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 400 ALR 1.

61. The respondent submitted:

“The applicants have not established any basis to suggest that the quantum of any claim limited to the sole respondent can exceed the policy cap of $340,000, let alone the Tribunal’s monetary limit.”

Applicants’ submissions in response

62. In oral submissions, in response to the submission that the application was an abuse of process, Mr Klooster relied upon the decision of Lindsay J in JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501.

63. The application before his Honour in that case was the second application brought by the defendants for payment to them of money paid into court. A previous application had been dismissed by Rein J approximately six months previously.

64. Lindsay J addressed, at [60] to [73], the principles applicable to the bringing of a second interlocutory application:

“60   The plaintiffs contend that principles of res judicata or issue estoppel stand in the way of the defendants' present motion. I think not. His Honour's decision was considered, but interlocutory in character. The fact that it followed closely upon, or was associated with, other orders of a final character does not render it final. The decision not to order that the disputed funds be paid out to the defendants was not consequential upon, and merely working out, a principal order from which it could take on the colour of a final judgment: cf, Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 at 153 [35]-[36], citing Handley JA in Derrawee Pastoral Co Pty Ltd v McConochie (unreported, 24 February 1995). Each order must be assessed in terms of its legal effect. Principles governing res judicata and issue estoppel are predicated upon the existence of a final judgment or order: Blair v Curran (1939) 62 CLR 464 at 531-533; Kuligowski v Metrobus (2004) 220 CLR 363 at 373 [21] and 374-375 [25].

61   That said, principles governing abuses of the process of the Court may be called in aid of opposition to repetitive interlocutory applications: National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 317-318 [13]-[17].

62   There is no absolute bar on the renewal of an interlocutory application absent a change in circumstances: Nominal Defendant v Manning (2000) 50 NSWLR 139 at 155-156 [71]-[73] and 167 [122]. However, the Court of Appeal has noticed, and left open for consideration in an appropriate case, the possibility that Nominal Defendant v Manning may require reconsideration in light of the subsequent enactment of the "case management" system of judicial administration embodied in the Civil Procedure Act 2005 NSW, ss 56-60: Fletcher v Besser [2010] NSWCA 30 at [17].

63   It is not necessary, and therefore it is not appropriate, to enter upon that territory in this judgment. The motion presently before the Court can be adequately dealt with without doing otherwise than applying Nominal Defendant v Manning, upon an assumption that it remains the guiding star despite the appearance of statutory case management procedures in the firmament.

64   Nevertheless, I do not overlook the practical reality that a change in circumstances bearing upon the justice or otherwise of adherence to an interlocutory decision is generally looked for on renewal of an application for a different decision: Adam P Brown Male Fashions Pty Limited v Phillip Morris Incorporated (1981) 148 CLR 170 at 177-178. And care needs to be taken to guard against repetitive applications that might be characterised as "judge shopping" - an endeavour to seek from one judge what another has refused, in order to circumvent limitations on the availability of appeals from interlocutory decisions: Re Delta Landscaping Pty Limited v Bell Dies Pty Limited (1990) 20 NSWLR 508 at 509E-G.

65   The plaintiffs' contention that some measure of finality should be taken to have attached to Rein J's determination (that disputed funds should, for the time being, remain in court) is a contention implicitly based upon an assertion that it is an abuse of process for the defendants to re-agitate an interlocutory application for a payment out of court in the absence of a material change of circumstances.

66   The motion presently before the Court was filed by the defendants on 30 November 2012, approximately two months after Rein J decided that the appropriate course was that the moneys presently held in court should remain in court until the process of costs assessment has been completed or, at least, one might infer, until such time as competing claims to the funds in court referable to costs have been quantified.

67   Nevertheless, both sides of the record have made extensive submissions - the defendants in support of an order for the payment out of all moneys in court to them, the plaintiffs for the moneys to remain in court as security for their costs entitlement - on the hearing of the defendants' motion.

68   There has been no change in circumstances since publication of Rein J's judgment of 28 September 2012 sufficient to allow the current motion to be debated afresh without a very real question arising as to whether the motion is an abuse of process.

69   The only "change" of substance is the fact that the plaintiffs have made an application for assessment of their costs, claiming an amount far in excess of the balance of the funds paid into court, and the defendants have neither made nor foreshadowed objections to the plaintiffs' bill. This is not a development, objectively, beyond contemplation at the time Rein J delivered judgment.

70   The fact that, before Rein J, the defendants may not have pressed their arguments about their lawyers' security entitlements does not entitle them, on reflection after judgment, to have another go on a fresh application for payment out.

71   If anything more than an absence of a material change of circumstances is required to ground a finding that the defendants' motion is an abuse of process (Nominal Defendant v Manning (2000) 50 NSWLR 139 at 167 [122]) it might, on the plaintiffs' case, be found in characterisation of the motion as an attempt to pre-empt any assessment of the plaintiffs' costs. The defendants seek to appropriate to themselves, or more especially their lawyers, their only disclosed "asset". They seek to do that without disclosure of their financial circumstances, or the existence of potential competing claims to the funds in court. They proffer to the Court no undertaking, or any lesser form of assurance, that the defendants have, or will set aside, sufficient funds to satisfy the plaintiffs' costs entitlement presently being quantified via a formal assessment process.

72   On balance, however, I decline to dismiss the defendants' motion as an abuse of process. Given the course of the proceedings, and Rein J's express apprehension about the absence of applicable authority, the better course appears, to me, to deal with the motion on its merits, treating as going to no more than an exercise of the Court's discretion the undesirability of repetitive interlocutory applications. That is consistent with Hayden JA's observations in Nominal Defendant v Manning (2000) 50 NSWLR 139 at 156 [72] and the later observations of the Court of Appeal in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318 [16].”

65. The applicants submitted that the decision of Lindsay J was authority for the proposition that their application was not inherently an abuse of process.

66. In respect of the submission that the applicants should withdraw the proceedings in the Tribunal and commence in the District Court, Mr Klooster pointed to the provisions of regulation 49 of the Home Building Regulation. Mr Klooster submitted that the application was commenced within the time laid down in the regulation and that the applicants were now out of time to commence fresh proceedings.

67. The applicants did not suggest that they are out of time to commence proceedings in a court seeking relief for breach of section 18 of the ACL or in respect of a promissory estoppel. However, Mr Klooster submitted that the claims by the applicants in misleading and deceptive conduct, unconscionability and estoppel raise common factual issues in respect of which there will be a risk of inconsistent outcomes if those claims were decided separately from the insurance claim.

68. Mr Klooster referred to the judgment of Schmidt J in Glenella One Pty Ltd v Duncan [2015] NSWSC 165 at [18], where her Honour stated:

“… commonsense plainly suggests that, given the common factual underpinnings of the parties' respective cases in the two sets of proceedings, the one court should deal with the entire controversy.”

Respondent’s oral submissions in response

69. Mr Porman, solicitor, who appeared for the respondent, submitted in response that the core issue in the proceedings as originally commenced was whether the applicants’ claim was covered by the Policy. Mr Porman submitted that the further claims which the applicants sought to raise should not be permitted to be incorporated into the proceedings which otherwise raise only that narrow issue.

Applicants’ further submissions after the hearing

70. I note that the applicants sent to the Tribunal, after the hearing, what purported to be a further submission. The applicants had neither sought, nor been granted, leave to file any further submissions.

71. As the Appeal Panel held in Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 at [109], citing Bale v Mills [2011] NSWCA 226 at [57] to [61], sending submissions without leave to the Appeal Panel is wrong, the Appeal Panel may and generally will ignore what has been sent. The same principal is applicable in first instance proceedings in the Consumer and Commercial Division of the Tribunal.

72. The further submission should not have been filed and I have had no regard to it in considering my decision.

Consideration

73. I have set out above the provisions of cl 6(1) of Sch 4 of the NCAT Act. The principles applicable in the application of that provision were considered by the Appeal Panel in Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 252 (Promina), at [88] – [101]:

88.   The question for determination when the Tribunal is considering an application to transfer proceedings is whether the interests of justice require the transfer.

89.   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)”.

90.   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.

91.   In this regard we note the statement of Schmidt J in The Owners – Strata Plan No70030 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.”

92.   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.

…

94.   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.

95.   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]).

96.   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].

97.   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.

…

99.   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.

…

101   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.

74. I also note the statements of the Tribunal in Draybi Bros Pty Ltd v Diab [2014] NSWCATCD 67, at [126] and [128]:

126   Section 48K of the HBA provides the Tribunal has jurisdiction to determine building claims, the limit of that jurisdiction being claims not exceeding $500,000. However there are time limits for the lodgement of applications affecting the Tribunal's jurisdiction which do not coincide with general law limitation periods applicable to particular claims. Where, by reason of the limitations in s48K the Tribunal has no jurisdiction to hear a case, the Tribunal may transfer the application to a court which has jurisdiction: see section 23 of the Consumer Trader Tenancy Tribunal Act. Prior to making an order for transfer it is necessary for the Tribunal to consider whether there is an action maintainable in the court so as to make such a transfer appropriate, or whether the application should otherwise be dismissed.

…

128   In addition to considering any jurisdictional limits applicable by reason of time limitations, which might justify transfer of the applications to a court, the Tribunal should also be satisfied the claim which is proposed to be transferred is otherwise maintainable at law. If not, then the Tribunal properly exercising its discretion should, in my opinion, dismiss the application rather than transfer the proceedings to a court.

75. The issues requiring my determination are:

1. Whether the Application for Miscellaneous Matters filed on 4 July 2023 is an abuse of process;

2. Whether the applicants should have leave to file the Proposed Amended Points of Claim;

3. In either event, whether the Tribunal has jurisdiction to determine the applicants’ claim;

4. Whether, in light of the answers to the foregoing issues, it is appropriate to make the order for transfer sought by the applicants;

5. What order(s) should be made concerning costs.

Abuse of process

76. I accept that the decision of Lindsay J in JKB Holdings Pty Ltd v de la Vega is authority for the proposition that a second interlocutory application seeking the same order after an initial application has been refused is not automatically an abuse of process even in the absence of a change in circumstances. Nevertheless, a second application, which could be seen to be merely an attempt to get a better result from a Tribunal member likely to be more sympathetic to the application, would constitute an abuse of process. As Lindsay J noted in JKB Holdings at [64] “care needs to be taken to guard against repetitive applications that might be characterised as ‘judge shopping’”.

76. Although I regard this application as close to the line, I am not prepared to find that the application filed on 4 July 2023 is an abuse of process. The reason why I have reached that conclusion is that the Senior Member’s decision of 7 June 2023 was founded substantially on the absence of evidence to establish that the claims sought to be raised by the applicants under the ACL were likely to exceed the limit of the Tribunal’s jurisdiction.

77. Mr Amirbeaggi stated in his affidavit of 10 July 2023 that, on 21 April 2023, he had written to the Tribunal “enclosing for filing” the expert reports of Mr Tucker and Mr Ellis. Mr Amirbeaggi exhibited to his affidavit a copy of a letter dated 20 April 2023 addressed to “The Proper Officer” of the Tribunal. The letter referred to the orders made on 24 February 2023 and stated that the reports of Mr Ellis and Mr Tucker were enclosed. The respondent did not seek to challenge that evidence.

78. The Tribunal’s file does not record the receipt of that letter. The file records no documents relevant to the proceedings received between the applicant’s Submission on Jurisdiction filed on 23 February 2023 and the respondent’s submissions, filed on-line on 2 June 2023 and in hard copy on 5 June 2023. Mr Amirbeaggi’s evidence does not address the question how the evidence, which he asserted had been forwarded to the Tribunal, might have gone astray. Nevertheless, it is apparent from emails exchanged between the applicants and the solicitors for the respondent in April 2023 (which were exhibited to Mr Amirbeaggi’s affidavit), that the applicants did serve a copy of the reports of Messrs Tucker and Ellis upon the respondent on or about 21 April 2023 and informed the respondent that they relied “for the purposes of the Tribunal proceedings and the timetable pronounced on the last occasion” upon “their earlier application” and “their earlier written outline of submissions” and the reports of Messrs Tucker and Ellis.

79. The respondent’s submissions filed on 2 and 5 June 2023 attached an email from Mr Amirbeaggi dated 24 April 2023, responding to an email from Mr Porman on behalf the respondent seeking confirmation of what the applicants intended by the terms “earlier application” and “earlier written outline of submissions”. In the email of 24 April 2023 Mr Amirbeaggi stated:

“For clarity … the applicants rely upon:

1.   Written Outline of Submissions dated 31 October 2022, 16 November 2022, and 23 February 2023,

2.   The Statement of Claim appended to the Written Outline of Submissions dated 23 February 2023, and

3.   The Application dated 23 February 2023.”

81. In the email, Mr Amirbeaggi took issue with the assertion made by Mr Porman that additional parties had not been joined to the proceedings but asserted that that was not relevant to the current application. Mr Amirbeaggi stated:

“This Application relates to whether or not the proceedings ought to remain within the Tribunal or instead be transferred to the Supreme Court of New South Wales. In that regard, the Applicants say that the claims concern a matter of federal jurisdiction, and with the evidence recently served now exceed the monetary threshold of the Tribunal [emphasis added].”

82. Whether or not the evidence of Messrs Tucker and Ellis was actually forwarded to the Tribunal, it is apparent that the applicants were proceeding on the understanding that it had been provided to the Tribunal. It is also apparent that the respondent had the same understanding, although the respondent’s submissions filed on 2 and 5 June 2023 did not address that evidence, rather asserting “there is no evidence that quantum could conceivably exceed $500,000 against the sole respondent.”

83. Although I consider that more detailed evidence of the circumstances surrounding the posting (or otherwise) of the letter dated 20 April 2023 could and should have been provided, in the circumstances I cannot find that the applicants did not believe that they had filed evidence in support of the application to transfer the proceedings. For that reason, I am satisfied that the application now accompanied by the evidence of Messrs Tucker and Ellis is not an abuse of process.

Leave to file the Proposed Amended Points of Claim

84. I do not consider it appropriate to grant leave to file the Proposed Amended Points of Claim.

85. I do not consider that the claims made by the applicants against the respondent for breach of the ACL are so without substance that would be appropriate to deny the applicants leave to file the Proposed Amended Points of Claim on the basis that it failed to disclose a reasonable cause of action. It is not necessary to express a view concerning the claims of unconscionability and promissory estoppel.

86. However, the document persists with the naming of two additional respondents notwithstanding that no order has been made for their joinder.

87. Section 44 of the NCAT Act relevantly provides:

44   Parties and intervention

(1)  The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

(2)  The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has—

(a)  been improperly or unnecessarily joined, or

(b)  ceased to be a proper or necessary party.

88. Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) provides:

27   Parties to proceedings for general decision or administrative review decision

The parties to proceedings for a general decision or administrative review decision are—

(a)  the applicant, and

(b)  if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant)—the person or body in respect of whom the order or other decision is sought, and

(c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act—the Attorney General or Minister, and

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e)  any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

89. Proceedings in the Tribunal are commenced by the filing of an application. An application commenced in the Consumer and Commercial Division will name, as required by the standard form published by the Tribunal, the parties “in respect of whom” an order is sought.

90. There is no provision of the NCAT Act or the Rules which permits a party, given leave to file an amended statement of its case (eg by filing amended points of claim), to join further parties simply by naming them as respondents and including claims against them in the amended document.

91. The Proposed Amended Points of Claim cannot be filed as long as it continues to make allegations and seek relief against entities who have not been made parties to the proceedings.

92. I do not consider it would be appropriate to join the additional respondents named by the applicants as parties to the proceedings.

93. Had the applicants not been given leave to amend their Points of Claim in October 2022, I would not have considered it appropriate to grant the applicants leave to amend their claim to make claims against the respondent, pursuant to the ACL or under the general law, for misleading and deceptive conduct, unconscionability or promissory estoppel.

94. As the respondent submits, the initial application filed by the applicants raised only the question whether the respondent correctly rejected the applicants’ claim under the Policy. That question will be determined by reference to the terms of the Policy and the evidence tendered by the parties concerning the building contract with Matrix and Matrix’s performance of that contract. The Tribunal hearing an appeal against the decision of an insurer in respect of a cover contract under the HBA “determines the appeal on the basis of a re-hearing of the insurance claim.”: Hawli v NSW Self Insurance Corporation [2017] NSWCATCD 38 at [56].

95. The conduct of the insurer during the process of assessment of the claim is irrelevant to that determination. The outcome of the appeal will be relevant to the consideration of the applicants’ claims under the ACL or the general law but only as a fact which may (or may not) affect the assessment whether the respondent engaged in unconscionable or misleading and deceptive conduct.

96. Of the five representations pleaded by the applicants in the Proposed Amended Points of Claim, only the representation pleaded in paragraph 78.2 (that is the alleged representation that the claim would be paid in full) could be said to hinge in any way upon the ultimate determination of the applicants’ claim under the Policy. The remaining representations relate entirely to the respondent’s process of assessment.

97. The alleged representation that the claim would be paid in full might be construed as a statement of the respondent’s intention at the time the representation was made. The ultimate resolution of the claim could have no bearing on whether or not that representation was made or, if made, was misleading or deceptive. To the extent the alleged representation constituted a representation as to the future, the provisions of s 4 of the ACL (which is pleaded in the Proposed Amended Points of Claim) would have the effect that the representation will be taken to be misleading unless the respondent had reasonable grounds for making the representation. Again, the determination of that question will be not be dependent upon the ultimate outcome of the applicants’ appeal against the rejection of their claim.

98. For the foregoing reasons I am not persuaded that there would be any risk of inconsistent factual findings if the applicants’ claim under the Policy were determined in the Tribunal and the claims under the ACL and the general law were determined in separate proceedings elsewhere.

Does the Tribunal have jurisdiction to determine the applicants claim?

99. It is clear that the Tribunal has jurisdiction to determine the claim as originally filed. The Tribunal has jurisdiction, pursuant to s 48K(1) of the HBA, to hear and determine a building claim in which the amount claimed does not exceed $500,000. The appeal against the respondent’s decision under the Policy is a “building claim” (as noted above) and the policy limit, and therefore the maximum amount of the initial claim, is $340,000.

100. However, the applicants filed the Filed Amended Points of Claim on 16 November 2022. That document was filed in accordance with the directions made on 31 October 2022, albeit two days late. The respondent has not suggested that the document should have been rejected because of that short delay.

101. The Filed Amended Points of Claim raises, albeit without clarity or particularisation, claims for misleading and deceptive conduct and unconscionability.

102. The Tribunal is not a forum where strict rules of pleading apply. I consider it is appropriate to have regard to the Proposed Amended Points of Claim as an indication of the nature of the claims made by the applicants in the Filed Amended Points of Claim.

103. To the extent the Proposed Amended Points of Claim is consistent with and expands upon allegations made in the Filed Amended Points of Claim, it can be regarded as a form of particularisation of the claims made in the Filed Amended Points of Claim. Regardless that I have not granted leave to the applicants to file the Proposed Amended Points of Claim, having regard to the obligations of the Tribunal, pursuant to s 38(4) of the NCAT Act, to “act with as little formality as the circumstances of the case permits and according to equity, conscience and the substantial merits of the case without regard to technicalities or legal forms”, I do not consider that the applicants could be denied the opportunity to particularise the claims made in the Filed Amended Points of Claim in the manner set out in the Proposed Amended Points of Claim.

104. It is also appropriate to have regard to the evidence relied upon by the applicants, in particular the reports of Messrs Tucker and Ellis.

105. As the Appeal Panel noted in Promina, at [99] and [101], it is neither necessary nor appropriate for the Tribunal, in considering whether an application is within jurisdiction for the purposes of an application for transfer to a court, to determine whether the evidence, tendered by the applicant for transfer to demonstrate that their claim will exceed the jurisdiction of the Tribunal, will be accepted. The applicant must put forward credible evidence, but a detailed examination of the evidence is not required.

106. I am satisfied that the claims pleaded by the applicants in the Filed Amended Points of Claim, including the claim alleging misleading and deceptive conduct contrary to s 18 of the ACL, as clarified and particularised by the Proposed Amended Points of Claim, are for an amount in excess of the Tribunal’s jurisdiction.

107. The Proposed Amended Points of Claim identifies that the alleged misleading representations were made by the respondent between December 2021 and June 2022. Mr Ellis’ third report, of 11 April 2023, expressed the opinion that the value of the applicants’ property fell between March 2022 and December 2022 by $150,000, and predicted that the value would fall by a further $50,000 by June 2023.

108. This is some evidence to support the applicants’ claim that, had they not been persuaded to delay the sale of the property, they would have been able to sell it for at least $150,000 (and as much as $50,000) more than they might now receive.

109. I note that Mr Amirbeaggi’s affidavit does not directly state what he claims the applicants would have done if the representations had not been made. At [30] Mr Amirbeaggi states that, by reason of the breach of contract by Matrix and “subsequent litigation”, the intention to occupy the property was abandoned and “the property was thereafter held for rectification of the defective works and resale”. It is only indirectly (at [113]), in repeating a conversation with the applicants’ own former solicitors concerning a request by the respondent for an adjournment of these proceedings in October 2022, that Mr Amirbeaggi states that:

“We are now up to one year since the claim was lodged. The cost of construction has increased substantially over the year, and I can’t sell the property with its defects, and we are in a declining market. And we are capped at $340,000 so whilst they are taking further time, we are suffering further loss.”

110. I note in particular that there is no explanation from the applicants concerning why the rectification works were not carried out and the property sold, once the applicants became aware that the respondent was not prepared to pay the claim in full and intended to defend the application.

111. However, as I have noted above, I do not regard the applicants’ claim as so without merit that it should be summarily dismissed, and the factual basis for the claim for damages of $150,000 by reason of the diminution in value of the property is set out, albeit imprecisely, in the Proposed Amended Points of Claim.

112. I do not consider that the applicants’ claims under the ACL or the general law arise from the supply of building services, and accordingly they do not constitute “building claims” within the meaning of s 48A of the HBA: Grygiel v Baine [2005] NSWCA 218 at [57] – [63].

113. Nevertheless, I accept that the applicants’ claims under the ACL would constitute “consumer claims” within the meaning of s 79E of the Fair Trading Act. As noted above, in these proceedings the Tribunal’s jurisdiction in respect of consumer claims is limited to $40,000 and hence the applicants’ claims under the ACL exceed the jurisdiction of the Tribunal.

114. Mr Tucker expressed the opinion in his report that the cost of rectification of the works alleged by the applicants to be incomplete or defective has increased by between $13,068 and $50,113.50 between March 2022 and March 2023. Mr Tucker’s reasoning in support of the higher figure is not exposed beyond his “own experience in the construction industry over the past 12 months” and what “the construction industry accepts”. The lower figure is based upon Rawlinson’s Australian Construction Handbook 2022 and 2023 and the Australian Institute of Quantity Surveyors’ “Building Cost Index Report March 2023”.

115. Mr Tucker states that:

“Whilst the Rawlinson’s Australian Construction Handbook and AIQS Building Cost Index are usually referred to as a source for calculation of escalation of construction costs neither reflect the real market rate of escalation of costs over the last 12 months.”

116. Even at the lowest figure for escalation, the applicants’ claim in respect of misleading and deceptive conduct exceeds $160,000 so that the total amount of the applicants’ claim exceeds $500,000.

117. Therefore, even if the applicants’ claims against the respondent for misleading and deceptive conduct were “building claims”, as that term is defined in s 48A of the HBA, the applicants’ claim exceeds the jurisdiction of the Tribunal.

118. I have not addressed the claims alleging unconscionability and promissory estoppel. Without the claim alleging misleading and deceptive conduct contrary to section 18 of the ACL, I doubt that I would have considered the claims in unconscionability and promissory estoppel sufficiently well-defined to establish that the application, as amended by the Filed Amended Points of Claim, is not within the jurisdiction of the Tribunal.

Should the proceedings be transferred to the District Court?

119. I have concluded that the application before the Tribunal (as amended in November 2022) includes claims which are not within the jurisdiction of the Tribunal. The respondent nevertheless submits that the application should be dismissed pursuant to s 55(1)(b) and/or (d) of the NCAT Act.

120. I accept the respondent’s submission that the applicants have failed to comply with their obligations pursuant to s 36(3) of the NCAT Act, that is:

“[T]o co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal”.

121. The applicants were directed on 8 August 2022 to file all the evidence on which they relied by 12 September 2022. That time was extended by consent, on 13 September 2022, to 7 October 2022. On 7 June 2023, the applicants were directed to file the evidence on which they wish to rely by 4 July 2023.

122. At the hearing before me on 13 July 2023, 11 months after the applicants were first directed to file their evidence, the applicants indicated that they had not filed all the evidence on which they wish to rely at the hearing of their application.

123. On that occasion I directed that:

3.   Without prejudice to the applicants' application to amend their points of claim and for transfer, the timetable made by the Tribunal on 07-Jun-2023 is amended:

4.   Order 4 is vacated and instead it is ordered that the applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of the further evidence on which the applicant intends to rely at the hearing, in the event that the miscellaneous matters application is dismissed, by 27-Jul-2023. The Tribunal notes that the further evidence foreshadowed is limited to an affidavit attesting to some formal matters.

…

6.   A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so.

124. I recognise that the applicants were seeking to have the proceedings transferred from the Tribunal to a court, but that did not excuse them from compliance with the orders of the Tribunal.

125. Moreover, the applicants have been dilatory in pursuing their application for transfer, which was first mooted on 31 October 2022, when they were directed to file their application by 14 November 2022.

124. The applicants filed an application on 6 December 2022 but did not proceed with it and only filed their second application on 23 February 2023, the day before the directions hearing at which, pursuant to orders made on 8 December 2022, the parties should have expected that any issues of jurisdiction would have been determined.

125. The current, third application, was filed on 4 July 2023, four weeks after the second application had been dismissed and directions had been made for the preparation of the matter for hearing.

126. Were the proceedings to remain in the Tribunal, there would be a strong case that the applicants should be limited to the evidence they have filed in accordance with my orders of 13 July 23.

127. The respondent has not identified any prejudice arising from the delay in preparation of the proceedings which cannot be cured by an order for costs.

128. In those circumstances I do not consider it would be appropriate to dismiss the application pursuant to s 55(1)(d) of the NCAT Act for want of prosecution.

129. I have already indicated above that I am not persuaded that the applicants’ claim for compensation or damages pursuant to the ACL should be dismissed as frivolous, misconceived or lacking in substance.

130. I accept that the District Court of NSW will have jurisdiction to determine the claims raised by the applicants in the Filed Amended Points of Claim.

131. Accordingly, because I have determined that the applicant’s claims exceed the monetary jurisdiction of the Tribunal, I consider that the appropriate course is to order the transfer of the proceedings to the District Court, as requested by the applicants. I will suspend my order for a period of 14 days after publication of these reasons so that the respondent may, if so advised, apply to the Appeal Panel for a stay of the orders as, once the file has been transferred to the District Court, the Appeal Panel would have no jurisdiction to order a stay: Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 122.

Costs

134. The amount claimed in the proceedings exceeds $30,000 and therefore, pursuant to rule 38 of the NCAT Rules, the usual rules as to costs are applicable, special circumstances are not necessary before I may make an order for costs.

135. The applicants have obtained mixed success in respect of their Application for Miscellaneous Matters. The applicants failed in their application for leave to file the Proposed Amended Points of Claim but have succeeded in their application for transfer of the proceedings to the District Court. However, the application for transfer was an application for an indulgence, that is for the Tribunal to make an order which would not have been necessary if the applicants had commenced their application in a forum with jurisdiction to determine their claim. The usual rule in cases where a party seeks an indulgence is that that party pay the costs of the application: Nardell Coal Corporation Pty Ltd (recs & mgrs appointed) (in liq) v Hunter Valley Coal Processing Pty Ltd [2003] NSWSC 642 at [144] – [145].

136. I do not, as presently advised, consider that the conduct of the respondent in opposing the transfer of the proceedings was unreasonable. The respondent raised legitimate and substantial grounds in opposition to the application for transfer which, although I have ultimately found it should succeed, was finely balanced.

137. I propose to order that the applicants pay the respondent’s costs of the Application for Miscellaneous Matters filed on 4 July 2023 and any costs thrown away by reason of the commencement of the proceedings in the Tribunal. I note that the Tribunal’s orders of 7 June 2023 included an order that the applicants pay the respondent’s costs of the proceedings after 31 October 2021. It is therefore not necessary to consider costs incurred by the respondent between 31 October 2022 and 7 June 2023.

138. I will make provision for either party to apply for a different order in respect of costs within 14 days of the date of publication of these reasons. In the event such an application is made, my orders in relation to costs will cease to have effect.

orders

139. My orders are:

1. Subject to order (2) below, pursuant to Clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act the proceedings are to be transferred to the District Court of NSW (in accordance with the rules of that court), and to continue before that court as if the proceedings had been instituted there.

2. The operation of order (1) is suspended for 14 days from the date of these orders.

3. Subject to orders (4)-(6) below, the applicants are to pay the respondent’s costs of the Application for Miscellaneous Matters filed on 4 July 2023 and any costs thrown away by reason of the applicants’ commencement of proceedings in the Tribunal. Such costs are to be as agreed between the parties or assessed.

4. Either party may file and serve upon the other party within 14 days of the date of these orders submissions, not exceeding 5 pages, seeking an alternative order regarding costs.

5. In the event a party files submissions in accordance with order (4) above, order (3) above will cease to have effect and the other party may, within a further 14 days, file and serve submissions in response, not exceeding 5 pages.

6. Submissions strictly in reply, not exceeding 3 pages, may be filed and served within a further 7 days.

7. Submissions filed pursuant to orders (4) and (5) above must address the question whether the question of costs can be determined on the basis of the written submissions and without a hearing.

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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

Decision last updated: 08 August 2024