NTG Investment Group Pty Ltd v Moore

[2025] NSWSC 1149

Supreme Court

New South Wales

Medium Neutral Citation:

NTG Investment Group Pty Ltd v Moore [2025] NSWSC 1149

Hearing dates:

On the papers

Date of orders:

2 October 2025

Decision date:

02 October 2025

Jurisdiction:

Equity - Technology and Construction List

Before:

Peden J

Decision:

At [18]

Catchwords:

CIVIL PROCEDURE – Commercial List, Technology and Construction List – entry in – application for transfer of Local Court proceedings to Technology and Construction List – claim by architect for unpaid fees – cross-claim filed claiming damages from architect in relation to proposed re-development – re-development not pursued – no issues of complexity warranting entry in the Technology & Construction List – incidental “interesting issues of architecture and engineering” not enough – matter more appropriately dealt with in the Common Law Division

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Apex Supply Chain Management (AU) Pty Ltd v Nasser [2025] NSWSC 787

Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297

NSW Construction Corporation Pty Ltd v Commonwealth Bank of Australia [2025] NSWSC 848

Salubre v National Australia Bank Ltd [2025] NSWSC 807

Category:

Procedural rulings

Parties:

NTG Investment Group Pty Ltd (Plaintiff)
Ian Moore (Defendant)

Representation:

Solicitors:
JPR Law Pty Ltd (Plaintiff)

File Number(s):

2025/00300638

Publication restriction:

Nil

JUDGMENT

1. Both parties seek orders that Local Court proceedings be transferred to the Technology and Construction List.

2. NTG Investment Group Pty Ltd owns two commercial ground floor lots in the Altair Building, a mixed-use building in Kings Cross, which sits over the Cross City Tunnel. It retained Mr Ian Moore to provide architectural services in relation to a proposed re-development of those lots into residential units (the Project).

3. In the Local Court, Mr Moore sues NTG for $5,748.78 for unpaid architectural fees in relation to the Project.

4. On 5 August 2025, NTG filed its cross-claim, in which it alleges that the Project was not feasible, because it required structural work at ground level which could not be built, having regard to the location of the lots over the Cross City Tunnel. It alleges that Mr Moore was negligent, breached his retainer and engaged in misleading or deceptive conduct by failing to advise of the risk that the Project might not be feasible or buildable. NTG claims costs it says it wasted in relation to the Project, including a payment of $600,000 it made to the owners corporation of the relevant strata plan to permit NTG to use the common property air space above one of the lots, and loss of rent after NTG vacated its lots. It says that if its cross-claim succeeds, its damages may exceed $1.4 million, plus interest and costs.

5. In terms of the necessity of transfer to this list, the solicitor for NTG deposed that:

The quantum of such damages would exceed the jurisdictional limits of the Local Court, NCAT and the District Court.

Further, the case involves interesting issues of architecture and engineering, particularly having regard to the location of the Altair Building over the Kings Cross Tunnel. In my respectful opinion, it is a case which warrants being heard in the Supreme Court.

6. The summons was listed for directions on 26 September 2025. Then the parties indicated they consented to the transfer and were content for the application to be determined on the papers.

Transfer of Proceedings to the Technology & Construction List

7. Rule 45.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) confers a discretion upon this Court to enter proceedings in a specialist list such as the Technology and Construction List.

8. Rule 45.7(1) sets out categories of proceedings in the Equity Division of the Supreme Court which “may” be entered in the Technology and Construction List, including, relevantly:

(a)    proceedings relating to or arising out of—

(i)    the design, carrying out, supervision or inspection of any building or engineering work, or

(ii)    the performance by any building or engineering expert of any other services with respect to any building or engineering work, or

(iii)    any certificate, advice or information given or withheld with respect to any building or engineering work, or

…

(c)    proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to matters mentioned in paragraph (a) or (b).

9. In subsection (2), a “building or engineering expert” is relevantly defined to include an architect, and “building or engineering work” is defined to include:

(a) any intended building or engineering work, and

(b) any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and

(c) any associated work.

10. I have recently outlined the principles governing the exercise of the discretion in UCPR 45.2 to order the transfer of proceedings from the General List to the Commercial List: see Apex Supply Chain Management (AU) Pty Ltd v Nasser [2025] NSWSC 787 at [3]-[4]; Salubre v National Australia Bank Ltd [2025] NSWSC 807 at [5]-[8]; NSW Construction Corporation Pty Ltd v Commonwealth Bank of Australia [2025] NSWSC 848 (NSW Construction Corporation) at [14]-[16]. Those principles are generally applicable to the entry of proceedings in the Technology and Construction List, subject to the following additional observations.

11. First, the wording of r 45.7 and the proceedings described therein is intentionally broad. But, just as with UCPR 45.6(1), even where a proceeding meets one of the descriptions in r 45.7(1), the Court retains a discretion to refuse to enter proceedings in the Technology and Construction List: see eg Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 (Challenge Bank) at 301 (Rogers CJ Comm D). Indeed, the Technology and Construction List can only fulfil its function if the Court retains a discretion to transfer or refuse to enter matters which do not call for its expertise: see Challenge Bank Ltd at 306.

12. Second, the fact that the parties agree or consent to the transfer of proceedings to a specialist list does not dictate the exercise of the Court’s discretion. The applicant must show good reason for the transfer, and, in my opinion, it is not enough for the proceeding to have only a tangential or incidental connection to a subject normally adjudicated in the Technology and Construction List: see NSW Construction Corporation at [15].

13. I accept that, if completely successful, the damages NTG would be awarded under its cross-claim will exceed the jurisdiction of the Local Court and the District Court. That may be “sufficient reason” to transfer the proceedings to the Supreme Court: see s 140(4) Civil Procedure Act 2005 (NSW) (CPA). And, construed broadly, the Local Court proceedings arise out of the performance of building or engineering work and fall within UCPR r 45.7(1).

14. However, I am not satisfied that the proceedings should be entered in the Technology and Construction List. The proceedings have only a tangential connection with the subject matter of r 45.7 and are unlikely to raise issues of sufficient complexity to warrant entry in the Technology and Construction List. That is particularly so where:

1. the primary issue raised by NTG’s cross-claim is whether Mr Moore breached the contract, his duty of care or the statutory prohibition on misleading or deceptive conduct with reference to the material reasonably available to him at the time, and

2. no construction work was actually undertaken, so no issues of defects or rectification work arise.

15. It is not enough that the parties wish for the matter to be dealt with in the Technology and Construction List, or that the proceedings incidentally involve “interesting issues of architecture and engineering”. A claim of this size, involving contract, negligence and statutory misleading or deceptive conduct would be more appropriately dealt with in the Common Law Division.

16. It follows that I am not minded to grant the relief sought in NTG’s summons, transferring the proceedings to the Technology and Construction List.

17. However, because the application was made to the Equity Division, and keeping the overriding purpose of the CPA in mind, rather than simply dismiss the summons and require a fresh application for a transfer to the Common Law Division, I consider it appropriate to transfer the matter from the Local Court to the Equity Division, and then pursuant to section 54 of the Supreme Court Act 1970 (NSW) transfer those proceedings to the Common Law Division. It follows that it is unnecessary to deal with the prayer for relief in NTG’s summons seeking a dispensation from requirements of Practice Note SC Eq 3.

18. I make the following orders:

1. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), proceedings 2025/00093219 in the Local Court of New South Wales, Small Claims Division, including the plaintiff’s cross-claim filed on 5 August 2025, be transferred to the Supreme Court of NSW in the Equity Division, General List.

2. Pursuant to s 54 of the Supreme Court Act 1970 (NSW), the proceedings be transferred to the Common Law Division.

3. The proceedings be listed for directions before the Common Law Registrar on 28 October 2025.

4. The plaintiff’s summons filed on 6 August 2025 is otherwise dismissed.

5. No order as to costs.

**********

Decision last updated: 02 October 2025