Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 10

Breecass Pty Ltd v The Owners - Strata Plan No 61419; The Owners - Strata Plan No 61419 v Breecass Pty Ltd [2019] NSWCATCD 10

Both proceedings were transferred because Breecass Pty Ltd's claim raised a real jurisdictional issue as to whether NCAT could award damages, liquidated sums or unjust enrichment compensation under s 232 of the Strata Schemes Management Act 2015 (NSW), whereas a court clearly could determine such claims. The owners corporation's related s 72 proceedings should also be transferred because the evidence and issues overlapped, separate proceedings risked inconsistent findings, estoppels and duplicated costs, and s 72 did not give the Tribunal exclusive jurisdiction or materially deprive the owners corporation of legal rights if transferred. The Supreme Court of NSW was the appropriate court...

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 relating to the transfer reserved for determination by the Tribunal on written submissions.
Legal Topics
['transfer of Proceedings From NCAT to Court' 'building Management Agreement' 'jurisdiction Under S 232 of the Strata Schemes Management Act 2015 (nsw)' 'termination or Variation Under S 72 of the Strata Schemes Management Act 2015 (nsw)' 'risk of Overlapping Proceedings and Inconsistent Findings']
['strata Schemes' 'civil Procedure' 'tribunal Jurisdiction' 'contract'] ['transfer of Proceedings From NCAT to Court' 'building Management Agreement' 'jurisdiction Under S 232 of the Strata Schemes Management Act 2015 (nsw)' 'termination or Variation Under S 72 of the Strata Schemes Management Act 2015 (nsw)' 'risk of Overlapping Proceedings and Inconsistent Findings']

Case Brief

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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 should be transferred to a court because of uncertainty about NCAT's jurisdiction to award damages, liquidated sums or compensation for unjust enrichment under s 232 of the Strata Schemes Management Act 2015 (NSW)." "Whether The Owners - Strata Plan No 61419's s 72 proceedings should also be transferred so both proceedings travel together." "Whether the Tribunal had exclusive jurisdiction over the owners corporation's application under s 72 of the Strata Schemes Management Act 2015 (NSW)." 'Which court should receive the transferred proceedings.']

Ratio Decidendi

Both proceedings were transferred because Breecass Pty Ltd's claim raised a real jurisdictional issue as to whether NCAT could award damages, liquidated sums or unjust enrichment compensation under s 232 of the Strata Schemes Management Act 2015 (NSW), whereas a court clearly could determine such claims. The owners corporation's related s 72 proceedings should also be transferred because the evidence and issues overlapped, separate proceedings risked inconsistent findings, estoppels and duplicated costs, and s 72 did not give the Tribunal exclusive jurisdiction or materially deprive the owners corporation of legal rights if transferred. The Supreme Court of NSW was the appropriate court...

Court Disposition

Both NCAT proceedings were transferred to the Sydney Registry of the Supreme Court of NSW, with costs issues relating to the transfer reserved for determination by the Tribunal 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), and continue before that court as if they had been instituted there.' 'Order 1 applies to both matter SC 18/13154 and matter SC 18/23687.' 'Any costs application by the owners corporation...