The Consumer Trader & Tenancy Tribunal
(Tribunal) is empowered to determine any building
claim brought before it in which the amount claimed does not exceed
$500,000 (s48K of the Home Building Act 1989 (NSW)).
In proceedings commenced in the Tribunal, Da Silva & Da
Silva Constructions Pty Limited
(Da Silva), the corporate applicant, was ordered
to provide security for costs for Bresond Pty Limited, a
Pursuant to s67 of the Consumer Trader & Tenancy
Tribunal Act 2001, Da Silva appealed to the Supreme Court of
NSW on a question of law, namely the Tribunal holding that it had
jurisdiction to make an order for security for costs.
Smart AJ ultimately decided in favour of Da Silva, deciding that
the Tribunal did not have jurisdiction to make an order for
security for costs.
The overriding question to be answered was whether the Tribunal
was a court for the purposes of s1335 of the Corporations Act
2001 (Cth), the empowering provision for a "court"
to make an order for security for costs against a corporate
His Honour had regard to the definition of a court within the
Corporations Act (s58A) and took some significant solace from the
stance taken by the NSW Court of Appeal in Trust Company of
Australia Limited v Skiwing Pty Limited (2006) before
"having regard to the constitution of the Tribunal and
the related matters as to tenure or lack of tenure, the Tribunal
cannot be regarded as a court. The Tribunal therefore was not
entitled to exercise the powers of a court under s1335 of the
His Honour was not unsympathetic of the plight of a respondent
in Tribunal proceedings commenced by an apparently impecunious
corporate applicant, noting that:
"the Tribunal should have power in proceedings
involving more than $25,000 (or perhaps $50,000) to order security
for costs where there is an impecunious corporate plaintiff.
Building disputes are notoriously costly."
Under the Home Building Act, the Tribunal has the
jurisdiction within NSW to be "chiefly responsible for
resolving building claims". There is provision within
that Act for building claims (less than $500,000) commenced in any
Court to be transferred to the Tribunal for determination.
Respondents to the proceedings should give careful consideration to
these issues before making such an application.
Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty
Ltd (2008) 71 NSWLR 556;  NSWSC 158 (29 February
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