Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Parry-Husbands v Roffe [2023] NSWCATCD 167 Hearing dates: 06 November 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Consumer and Commercial Division Before: G. Sarginson, Senior Member Decision: (1) The proceedings are transferred to the District Court of NSW and continue before that court as if the proceedings had been instituted there.
(2) Order 1 is stayed until determination of the costs application arising from the transfer application, or further or other order of the Tribunal.
(3) The respondents are to file with the Tribunal and serve on the applicants costs submissions and documents by 7 days from the date of this decision.
(4) The applicants are to file with the Tribunal and serve on the respondents costs submissions and documents in response to the respondents costs application and in support of any costs application by the applicants by 14 days from the date of this decision.
(5) The respondents are to file with the Tribunal and serve on the applicants all costs submissions in reply by 21 days from the date of this decision.
(6) The costs submissions of the parties are to include reference as to whether they agree to the issue of costs being determined without a further oral hearing, and if not, why not.
(7) Subject to consideration of the submissions of the parties, the Tribunal may determine it appropriate to dispense with a further oral hearing on the issue of costs under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(8) Any application to vary the timetable for costs submissions and documents must be made by no later than the date of compliance with the timetable obligation.
(9) Costs submissions and documents must be filed with the Tribunal in hard copy.
Catchwords: CIVIL PROCEDURE---Transfer of proceedings---From NCAT to District Court---Jurisdiction of Tribunal under Home Building Act 1989---Claim for damages exceeding jurisdiction limit---Further and separate claim involving sale of premises---Whether grounds established for transfer
Legislation Cited: Australian Consumer Law 2010 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW).
Evidence Act 1995 (NSW)
Home Building Act 1989 (NSW) (HB Act)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142
BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103
Breecass Pty Ltd v The Owners-Strata Plan No 61419; The Owners-Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Gregg v R [2022] NSWCCA 245
Grygiel v Baine [2005] NSWCA 218
Owners-Strata Plan No 730030 v Decon Australia Pty Ltd [2014] NSWSC 347
Promina Design & Construction Pty Ltd v The Owners-Strata Plan No 97449 [2023] NSWCATAP 252
Wilson v Chan and Naylor Parramatta Pty Ltd [2020] NSWCA 213; (2020) 103 NSWLR 140
Texts Cited: Nil
Category: Procedural rulings Parties: Howard Keith Parry-Husbands (First Applicant)
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- AGLC
- Parry-Husbands v Roffe [2023] NSWCATCD 167
- Case
- [2023] NSWCATCD 167
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was whether the grounds for transfer from the NCAT to the District Court were established. Specifically, the court needed to determine if the additional claim regarding the sale of the premises was indeed a further and separate claim that warranted a transfer to a higher court with broader jurisdiction. The applicants argued that the claim for damages and the claim concerning the sale of the premises were distinct, necessitating the transfer to a court that could handle both claims in one proceeding. The respondents, Roffe, contended that the claims were interconnected and should remain within the jurisdiction of the NCAT.
The court found that the grounds for transfer were indeed established. The claim for damages was separate from the claim regarding the sale of the premises, and the amount of the damages claim exceeded the jurisdiction limit of the NCAT. Therefore, the court ordered that the proceedings be transferred to the District Court of New South Wales. The order also included provisions for the parties to submit and exchange costs submissions and documents, with an option for the Tribunal to determine the issue of costs without a further oral hearing. The transfer order is stayed pending the determination of the costs application arising from the transfer.
Orders
Orders of the court
(1) The proceedings are transferred to the District Court of NSW and continue before that court as if the proceedings had been instituted there.
(2) Order 1 is stayed until determination of the costs application arising from the transfer application, or further or other order of the Tribunal.
(3) The respondents are to file with the Tribunal and serve on the applicants costs submissions and documents by 7 days from the date of this decision.
(4) The applicants are to file with the Tribunal and serve on the respondents costs submissions and documents in response to the respondents costs application and in support of any costs application by the applicants by 14 days from the date of this decision.
(5) The respondents are to file with the Tribunal and serve on the applicants all costs submissions in reply by 21 days from the date of this decision.
(6) The costs submissions of the parties are to include reference as to whether they agree to the issue of costs being determined without a further oral hearing, and if not, why not.
(7) Subject to consideration of the submissions of the parties, the Tribunal may determine it appropriate to dispense with a further oral hearing on the issue of costs under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(8) Any application to vary the timetable for costs submissions and documents must be made by no later than the date of compliance with the timetable obligation.
(9) Costs submissions and documents must be filed with the Tribunal in hard copy.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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