Alliance Project Group Pty Ltd v The Owners – Strata Plan No. 92334 [2019] NSWCATAP 154

Alliance Project Group Pty Ltd v The Owners – Strata Plan No. 92334 [2019] NSWCATAP 154

Leave to appeal was refused because the interlocutory orders did not finally determine substantive rights and permitted the real issues to be determined by a court with jurisdiction. The Tribunal had considered the alleged abuse of process and was not satisfied that the lack of quantum evidence when proceedings commenced made the proceedings misconceived or an abuse of process. The amendment and transfer orders were supported by evidence that the claim exceeded $500,000, and Decon did not disclose relevant error because the Tribunal heard both the dismissal and transfer applications before determining them.

Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Appeal in Home Building Proceedings / Application for Leave to Appeal Against Interlocutory Decisions Dismissing an Abuse of Process Application, Permitting Amendment and Transferring Proceedings to the Supreme Court of New South Wales
Outcome
Leave to appeal refused; appeal otherwise dismissed; Piety Capital Pty Ltd removed as a party; appellant ordered to pay respondent's costs on an ordinary basis.
Legal Topics
['leave to Appeal' 'interlocutory Decision' 'summary Dismissal' 'abuse of Process' 'tribunal Jurisdiction' 'work Order' 'amendment of Application' 'transfer to Supreme Court' 'statutory Warranties']
['practice and Procedure' 'home Building' 'civil and Administrative Tribunal Procedure'] ['leave to Appeal' 'interlocutory Decision' 'summary Dismissal' 'abuse of Process' 'tribunal Jurisdiction' 'work Order' 'amendment of Application' 'transfer to Supreme Court' 'statutory Warranties']

Case Brief

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Procedural Posture

Appeal in Home Building Proceedings / Application for Leave to Appeal Against Interlocutory Decisions Dismissing an Abuse of Process Application, Permitting Amendment and Transferring Proceedings to the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 80(2)(a) of the Civil and Administrative Tribunal Act, 2013 (NSW) from interlocutory decisions.' "Whether the Tribunal erred in refusing to dismiss the Owners Corporation's proceedings as an abuse of process or as misconceived or lacking in substance under s 55 of the Civil and Administrative Tribunal Act, 2013 (NSW)." 'Whether the Tribunal had jurisdiction under s 48K(1) of the Home Building Act, 1989 (NSW) to hear a claim for a work order where the value of the works was said to exceed $500,000.' 'Whether the Tribunal erred in allowing amendment of the application and transferring the proceedings to the Supreme Court of New South Wales under Sch 4 cl 6 of the Civil and Administrative Tribunal Act, 2013 (NSW).']

Ratio Decidendi

Leave to appeal was refused because the interlocutory orders did not finally determine substantive rights and permitted the real issues to be determined by a court with jurisdiction. The Tribunal had considered the alleged abuse of process and was not satisfied that the lack of quantum evidence when proceedings commenced made the proceedings misconceived or an abuse of process. The amendment and transfer orders were supported by evidence that the claim exceeded $500,000, and Decon did not disclose relevant error because the Tribunal heard both the dismissal and transfer applications before determining them.

Court Disposition

Leave to appeal refused; appeal otherwise dismissed; Piety Capital Pty Ltd removed as a party; appellant ordered to pay respondent's costs on an ordinary basis.

Orders

  • ['Piety Capital Pty Ltd is removed as a party to this appeal.' 'Leave to appeal is refused and the appeal is otherwise dismissed.' 'The applicant for leave/appellant is to pay the costs of the respondent, such costs to be as agreed or assessed on an ordinary basis.']