The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22

The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22

The proceedings are not misconceived as they disclose a clear cause of action for breach of statutory warranties, were filed within time, and lack of quantum evidence at time of filing does not justify dismissal. Given quantum now exceeds the Tribunal's jurisdictional limit, amendment and transfer to the Supreme Court is in the interests of justice to allow full enforcement of statutory rights. Costs should follow the outcome of the respective applications, subject to further submissions.

Parties
Applicant: The Owners Strata Plan No. 92334; First Respondent: Piety Capital Pty Ltd; Second Respondent: Alliance Project Group Pty Ltd
Jurisdiction
Australia
Judgment Date
05 March 2019
Procedural Posture
Home Building Claim, Interlocutory Applications for Dismissal and Transfer, Costs / Decision on Interlocutory Applications Prior to Substantive Hearing; Applications for Dismissal and Transfer to Supreme Court
Outcome
Dismissal application refused; amendment and transfer ordered; conditional costs orders.
Legal Topics
Jurisdiction, Dismissal of Proceedings, Transfer of Proceedings, Statutory Warranties, Costs Orders
Civil Procedure Building and Construction Law Strata Law Jurisdiction Dismissal of Proceedings Transfer of Proceedings Statutory Warranties Costs Orders

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Parties

The Owners Strata Plan No. 92334

Applicant

Piety Capital Pty Ltd

First Respondent

Alliance Project Group Pty Ltd

Second Respondent

Procedural Posture

Home Building Claim, Interlocutory Applications for Dismissal and Transfer, Costs / Decision on Interlocutory Applications Prior to Substantive Hearing; Applications for Dismissal and Transfer to Supreme Court

Legal Issues

  1. 1 Should the application be dismissed as misconceived under s 55(1)(b) Civil and Administrative Tribunal Act 2013?
  2. 2 Should the proceedings be transferred to the Supreme Court under cl 6(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013?
  3. 3 Should the application be amended to seek an amount exceeding $500,000?

Ratio Decidendi

The proceedings are not misconceived as they disclose a clear cause of action for breach of statutory warranties, were filed within time, and lack of quantum evidence at time of filing does not justify dismissal. Given quantum now exceeds the Tribunal's jurisdictional limit, amendment and transfer to the Supreme Court is in the interests of justice to allow full enforcement of statutory rights. Costs should follow the outcome of the respective applications, subject to further submissions.

Court Disposition

Dismissal application refused; amendment and transfer ordered; conditional costs orders.

Orders

  • The application to dismiss the proceedings under s 55(1)(b) Civil and Administrative Tribunal Act 2013 is refused.
  • The application is amended under s 53(1) Civil and Administrative Tribunal Act 2013 to an amount exceeding $500,000.