Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23

Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 23

Both proceedings should be transferred to the Supreme Court of NSW because Breecass Pty Ltd's claim for damages, liquidated sums or unjust enrichment under s 232 raised a real jurisdictional issue in NCAT while a court clearly had jurisdiction, and the owners corporation's related s 72 proceeding substantially overlapped in evidence and issues. NCAT was not satisfied that s 72 conferred exclusive jurisdiction preventing transfer, and separating the proceedings would risk inconsistent findings, estoppels and duplicated costs. The Supreme Court was the appropriate court because of the potential equitable relief and possible District Court jurisdictional issues.

Jurisdiction
Australia
Judgment Date
27 February 2019
Procedural Posture
Strata Schemes Proceedings Concerning a Building Management Agreement and Transfer of Proceedings / Procedural Ruling on Whether One or Both NCAT Proceedings Should Be Transferred to a Court
Outcome
Both NCAT proceedings were transferred to the Sydney Registry of the Supreme Court of NSW, with costs issues concerning the transfer reserved for determination by NCAT on written submissions.
Legal Topics
['transfer of Proceedings From NCAT to Supreme Court of Nsw' 'building Management Agreement' 'jurisdiction to Award Damages Under S 232 of the Strata Schemes Management Act 2015 (nsw)' 'termination or Variation of Building Manager Agreement Under S 72 of the Strata Schemes Management Act 2015 (nsw)' 'avoidance of Overlapping Proceedings and Inconsistent Findings']
['strata Schemes' 'civil Procedure' 'tribunal Jurisdiction' 'contract'] ['transfer of Proceedings From NCAT to Supreme Court of Nsw' 'building Management Agreement' 'jurisdiction to Award Damages Under S 232 of the Strata Schemes Management Act 2015 (nsw)' 'termination or Variation of Building Manager Agreement Under S 72 of the Strata Schemes Management Act 2015 (nsw)' 'avoidance of Overlapping Proceedings and Inconsistent Findings']

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Procedural Posture

Strata Schemes Proceedings Concerning a Building Management Agreement and Transfer of Proceedings / Procedural Ruling on Whether One or Both NCAT Proceedings Should Be Transferred to a Court

Legal Issues

  1. 1 ["Whether Breecass Pty Ltd's proceedings under s 232 of the Strata Schemes Management Act 2015 (NSW) should be transferred to a court because of uncertainty about NCAT's jurisdiction to award damages, liquidated sums or compensation for unjust enrichment." "Whether The Owners - Strata Plan No 61419's proceedings under s 72 of the Strata Schemes Management Act 2015 (NSW) should also be transferred so both proceedings travel together." "Whether NCAT had exclusive jurisdiction over the owners corporation's s 72 application such that transfer would deprive it of a forum." 'Whether the Supreme Court of NSW or District Court of NSW was the appropriate court for transfer.']

Ratio Decidendi

Both proceedings should be transferred to the Supreme Court of NSW because Breecass Pty Ltd's claim for damages, liquidated sums or unjust enrichment under s 232 raised a real jurisdictional issue in NCAT while a court clearly had jurisdiction, and the owners corporation's related s 72 proceeding substantially overlapped in evidence and issues. NCAT was not satisfied that s 72 conferred exclusive jurisdiction preventing transfer, and separating the proceedings would risk inconsistent findings, estoppels and duplicated costs. The Supreme Court was the appropriate court because of the potential equitable relief and possible District Court jurisdictional issues.

Court Disposition

Both NCAT proceedings were transferred to the Sydney Registry of the Supreme Court of NSW, with costs issues concerning the transfer reserved for determination by NCAT on written submissions.

Orders

  • ['The proceedings be transferred to the Sydney Registry of the Supreme Court of NSW in accordance with the rules of that court.' 'The proceedings continue before the Supreme Court of NSW as if they had been instituted there.' 'The transfer order applies to both matter SC 18/13154 and matter SC 18/23687.' 'Any costs...