Orosi v Nourozi

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Orosi v Nourozi [2023] NSWCATCD 59

Hearing dates:

On the papers

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. A hearing is dispensed with.

2. The application of Orosi Pty Ltd to transfer applications HB 22/46158 and HB 22/56030 is dismissed.

2. The costs of the transfer application are reserved.

3. The hearing of 13 October 2022 is confirmed.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 50(2)

Home Building Act 1989 (NSW), s 48K

Cases Cited:

BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Applicant: Shanin Nourozi UT Pty Ltd ATF Shanin Nourozi Unit Trust
Respondent: Orosi Pty Ltd

Representation:

Solicitors:

Applicant: Australian Presence Legal Pty Ltd
Respondent: Development Lawyers Pty Ltd

File Number(s):

HB 22/46158

Publication restriction:

Nil

REASONS FOR DECISION

Summary

1. This is the application of Orosi Pty Ltd (Builder) to transfer proceedings HB 22/56030 and HB 22/46158 to the District Court of New South Wales (District Court).

2. For the following reasons, the application is dismissed.

Background

3. Application HB 22/46158 was filed on 17 October 2022 (Homeowner’s application). The applicant is Shanin Nourozi UT Pty Ltd ATF Shanin Nourozi Unit Trust (Homeowner). He seeks an order that the Builder pay him approximately $334,000 for loss and damage in relation to defective building works.

4. Application HB 22/56030 was filed on 20 December 2022 (Builder’s application). It seeks $215,616 for “unpaid monies”.

Transfer application

5. At a directions hearing on 31 March 2023, the Builder indicated that it was proposing to make an application to transfer the Builder’s application to the District Court. A timetable for submissions was set and the Tribunal subsequently received submission from the Builder on 11 April and 2 May 2023 (in reply), and from the Homeowner on 26 April 2023.

6. I summarise those submissions as follows.

Builder’s submissions

7. I summary, the Builder submits that:

1. there is a significant prejudice to it if the transfer application is not granted as it will be “shut out” from its claim “due it possibly being out of time to pursue [it]”;

2. the relevant limitation period for the Builder’s claim in the Tribunal was 3 years from the date of the contract. As the Builder’s application was filed on 19 December 2022 and the date of the contract was 1 July 2018, the Builder may be outside the applicable limitation period to commence proceedings in the Tribunal under s 48K(8)(a) of the Home Building Act 1989 (NSW) (HBA);

3. both the Builder’s application and the Homeowner’s application should be transferred to the District Court to avoid “inconsistent determination”.

Homeowner’s submissions

8. The Homeowner opposes the transfer of the proceedings to the District Court. In summary, the Homeowner submitted:

1. the Builder has not identified any good reason to transfer the proceedings;

2. the…