What comes first? The transfer application or leave to amend?

In The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578, the Supreme Court of New South Wales refused an application for judicial review of the decision made by the Appeal Panel of the NSW Civil and Administrative Tribunal (Tribunal) regarding an application to transfer the proceedings to the Supreme Court pursuant to Clause 6 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) as damages exceeded the Tribunal's jurisdictional limit.


The Owners Corporation (OC) commenced proceedings in the Tribunal against the developer for alleged defective works one day prior to the expiry of the limitation period.

The timetable for evidence was extended three times for reasons largely attributable to the OC. The OC eventually provided its quantum report six weeks after the last date for compliance. The quantum report assessed damages at $800,000. The OC consequently made an application to transfer the proceedings to the Supreme Court given the damage assessed exceeded the Tribunal's jurisdictional limit of $500,000.

At first instance, the Tribunal ordered that the proceedings be transferred to the Supreme Court based on the excess quantum. This was reversed by the Appeal Panel. The OC subsequently applied to the Supreme Court for judicial review of the Appeal Panel's decision.

Appeal Panel's reasoning

The Appeal Panel concluded that because of the extreme unexplained lateness of the quantum report, the report should not be permitted in evidence. In making this decision, the test applied by the Appeal Panel was the balancing of prejudice whilst having regard to the guiding principle for 'just, quick, and cheap resolution of the real issues', as reflected in the CAT Act. Given the OC could not provide a satisfactory explanation for its extreme lateness, the OC's history of non-compliances and the prejudice on the developer, the Appeal Panel held the balance was in rejecting the report. The Appeal Panel ordered that the proceedings continue in the Tribunal, and that the quantum of the defects claimed remain under the Tribunal's jurisdictional limit.

Supreme Court's reasoning

The Supreme Court refused judicial review of the Appeal Panel's decision.

The Supreme Court agreed that whilst conceding an excess of $300,000 was not trivial, the Appeal Panel's decision was not in error or a miscarriage of justice. In making this decision, the Court agreed with the test applied by the Appeal Panel and the finding that the developer was prejudiced by the late evidence. The Court also concluded that the guiding principle to do justice to 'real issues' does not provide a licence to disregard procedural rules, and in this case, the OC was clearly responsible for unexplained delays.

This case provides a reminder for applicants to keep informed of limitation periods so proceedings are launched with an indication of damages. The case more critically cautions parties to keep the Tribunal and Court continually informed of delays (or non-compliances) and reasons for those non-compliances.

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