The applicant Homeowner lodged her application with the Tribunal on 7 November 2021 ("the Tribunal Proceedings"). She seeks compensation for the cost of rectifying allegedly defective work, for the cost of completing incomplete work, and for damages for alleged misleading and deceptive conduct and overcharging. Directions were made on 3 December 2021, 22 April 2022 and 10 June 2022. On 28 July 2022 the Tribunal Proceedings were listed for a 2 day hearing on 27 and 28 October 2022.
On 16 September 2022 the Builder commenced proceedings in the District Court seeking payment for outstanding invoices and payment for a margin claim ("the District Court Proceedings").
On 6 October 2022 the respondent filed a miscellaneous application with the Tribunal, seeking the transfer of the Tribunal Proceedings to the District Court or in the alternative that the Tribunal Proceedings be stayed. The Homeowner opposed both applications.
On 27 October 2022 the Tribunal refused both the application for transfer and the stay application. These are the reasons for that decision.
[2]
The law
The power to transfer proceedings is found in Clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act 2013:
6 TRANSFER OF PROCEEDINGS TO COURTS OR TO OTHER TRIBUNALS
(1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are--
(a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and
(b) to continue before that court as if the proceedings had been instituted there.
(2) If the parties in any proceedings that have been instituted in a court so agree, or if the court of its own motion or on the application of a party so directs, the proceedings are, if the proceedings relate to a matter for which the Tribunal has jurisdiction to exercise a Division function--
(a) to be transferred to the Tribunal in accordance with the procedural rules (if any), and
(b) to continue before the Tribunal as if the proceedings had been instituted in the Tribunal.
Bagnall v D & R Enterprises Pty Ltd T/as EF Building Solutions & Ors [2022] NSWCATCD 198 | Case summary | Zoe
Clause 5 is also relevant in respect of the relationship between the Tribunal proceedings and the District Court proceedings:
5 RELATIONSHIP BETWEEN TRIBUNAL AND COURTS AND OTHER BODIES IN CONNECTION WITH DIVISION FUNCTIONS
(1) Meaning of "court" For the purposes of this clause,
"court" means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that--
(a) is empowered under any other Act, or
(b) by consent of, or agreement between, 2 or more persons has authority,
to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.
(2) However,
"court" does not, for the purposes of this clause, include--
(a) a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or
(c) the Ombudsman, or
(d) any person exercising the functions of an ombudsman under any law of the Commonwealth, or
(e) any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.
(3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.
(4) Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.
(5) Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.
(6) For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant's claim or is recorded in the record made by the Tribunal in accordance with this Act.
(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.
(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.
(9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.
(10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.
I have had regard to the following cases: Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143, Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289, Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337.
[3]
Issues
The following issues arise:
Does the Tribunal have jurisdiction to determine the Homeowner's application?
Does the Tribunal have jurisdiction to determine the transfer application?
If so, how should the Tribunal exercise its discretion?
[4]
Does the Tribunal have jurisdiction to determine the Homeowner's application?
Clause 5 (3) provides that if, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue. There were no proceedings in the District Court when the Homeowner filed her application with the Tribunal on 7 November 2021. To the extent that the District Court proceedings seek to litigate issues arising under the Tribunal application, the District Court has no jurisdiction to hear or determine those issues.
The Builder submits that the Tribunal has ceased to have jurisdiction to hear the Homeowner's application because at the time he files the miscellaneous application, there were proceedings in the District Court (Clause 5 (7)). I do not accept that submission. As stated above, if the issues before the District Court are the issues in dispute in the Tribunal proceedings, the District Court does not have jurisdiction. If the issues to be determined by the District Court are different issues, then Clause 5 (7) does not apply.
I am satisfied that I do not need to determine whether the issues in dispute in the District Court proceedings are the same issues in dispute in these proceedings as that is ultimately a matter which goes to the District Court's jurisdiction.
[5]
Does the Tribunal have jurisdiction to determine the transfer application?
In Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143 the Tribunal determined:
"94The fact that a party asserting an entitlement to relief subsequently commences proceedings in a court does not deprive the Tribunal of jurisdiction. No provision of the Act suggests such consequence.
95An object of the Act is to provide a mechanism for settling disputes in the Tribunal. Section 36 of the NCAT Act provides the Tribunal is to apply the "guiding principle" in determining any application, namely to ensure the quick, cheap and just resolution of the real issues in dispute. Parties and their representatives have a duty to assist the Tribunal: section 36(3) NCAT Act.
96No submission was made that if the Tribunal has jurisdiction, it is not a convenient forum. No reason has been put forward as to why the applicant's choice of forum is otherwise inappropriate.
97Evidence has already been filed and any transfer to the Supreme Court will cause a waste of cost, in part due to the parties having to prepare evidence in a different form. The proceedings are otherwise at a stage where they are ready for final hearing, or could be made ready shortly.
98Accordingly the Tribunal is not satisfied an order to transfer the proceedings to the Supreme Court should be made and the application should be dismissed."
These observations apply equally to this application. I am satisfied that the Tribunal has jurisdiction to determine the transfer application. The District Court is a Court which has jurisdiction.
I will go on to consider how I should exercise the discretion which I have.
[6]
How should the Tribunal exercise its discretion?
I take into account the following:
1. The application for transfer is made late in the proceedings. The matter is listed for a 2 day hearing. The parties have filed their points of claim and points of defence and evidence including expert evidence. A transfer of the proceedings at this late stage is not consistent with the Tribunal's guiding principle.
2. The Builder has not explained why the transfer application was not made at an earlier time and has provided no explanation for his delay in doing so.
3. Whilst the Builder's claim in respect of the unpaid invoices and margin may be out of time in the Tribunal I am satisfied that there would appear to be no reason why those matters could not have been raised in these proceedings by way of an equitable setoff and/or as a defence to the overcharging allegation in these proceedings. The fact that the Builder has not done so has not been explained.
On balance I am satisfied that consistent with the Tribunal's guiding principle the matter should be determined without the delay which would be involved in transferring it to the District Court.
[7]
The stay application
I do not accept that there is any utility in staying these proceedings as I do not accept the basis for that application (that the Tribunal cannot determine the matter whilst the District Court proceedings are on foot). There is no other reason why the proceedings should be stayed, and a stay of the proceedings is not consistent with the Tribunal's guiding principle.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[9]
Amendments
06 September 2023 - Formatting amendments.
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Decision last updated: 06 September 2023
Parties
Applicant/Plaintiff:
Bagnall
Respondent/Defendant:
D & R Enterprises Pty Ltd T/as EF Building Solutions & Ors