DECISION
89The first matter for determination is whether or not the Tribunal has jurisdiction to hear and determine a claim in which equitable estoppel is raised by way of points of defence.
90It is common ground that the Tribunal does not have a general power to grant equitable relief. However, the question is whether the Tribunal is an inferior court within the meaning of the Law Reform Act and if so, whether the claim of equitable or promissory estoppel is an equitable defence within the meaning of that section. Section 6 is in the following terms:
6. Defence in inferior court.
Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample a manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970 .
91As to the issue of whether or not the Tribunal is a court, the question was considered in relation to a predecessor to the Consumer Trader and Tenancy Tribunal, the Consumer Claims Tribunal by the Court of Appeal in State Rail Authority of New South Wales v Consumer Claims Tribunal and others (supra). In that case, Hope JA, with whom Samuels and Clarke JA agreed that the Consumer Claims Tribunal was a court exercising judicial powers.
92The question of whether a tribunal was an "inferior court" under the Law Reform Act was considered by Kirby J in Taylor Farms. In that case His Honour concluded:
"Neither the Commercial Tribunal Act 1984, nor the Retail Leases Act 1994 specifically confer equitable jurisdiction upon the Tribunal. However, the Law Reform (Law and Equity) Act 1972 does confer limited equitable jurisdiction upon inferior courts. The Commercial Tribunal is, for the purpose of that Act, an inferior court (State Rail Authority of New South Wales v Consumer Claims Tribunal...)".
93However, the respondents contend that these authorities should not now be followed having regard to the decision of the Court of Appeal in Skiwing and the decision of Smart AJ in Da Silva
.
94Skiwing involved the issue of whether or not the Administrative Decisions Tribunal was a "court of the State" for the purpose of exercising jurisdiction under the Trade Practices Act, 1974. In delivering his judgement, Spigelman CJ expressed the following opinion:
"17. It is well established on the authorities that the word "court" has a protean quality and takes its meaning from its context. Various forms of quasi-judicial tribunal will fall within the concept of a "court" as that word is used in particular statutes. In the present case the statute has a constitutional overlay."
95After considering the indicia of the Administrative Decisions Tribunal Act in support of the proposition it was a "court of the State" and those indicia operating against such a proposition His Honour said:
"29. For many purposes, the Tribunal would have sufficient of the characteristics of a court to answer the statutory provisions relating to "courts". However, the constitutional expression "court of a State" picked up in section 86 (2) of the Trade Practices Act, adopts a more stringent requirement than may be intended by the State Parliament when using the word "court" in a statute. The issue arises under a Commonwealth statute, which invokes section 77 (iii) of the Constitution."
96Accordingly, His Honour concluded that the Administrative Decisions Tribunal was not a "court of a State".
97The reasoning of Spigelman CJ was examined by Smart AJ in Da Silva. That case involved the question of whether the Consumer Trader and Tenancy Tribunal was a court for the purpose of making an order for security for costs under section 1335 of the Corporations Act 2001 (Cwlth). Smart AJ at [11], concluded that the attempt to distinguish the basic reasoning of Spigelman CJ in Skiwing was not successful. Further, His Honour concluded at [16] that "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."
98In doing so His Honour declined to follow the decision of Bell J in Woodcrest Homes Pty Ltd v Fair Trading Tribunal and others [2002] NSWSC 552.
99Woodcrest also involved the question of whether the Tribunal could order security for costs against Woodcrest pursuant to section 1335 of the Corporations Law. Bell J concluded the Tribunal could make such an order. Her Honour said:
"16. The Tribunal has been vested with power to determine disputes between citizens settling for the future the existence of rights and obligations. It approaches the determination of claims before it by ascertaining the law and applying it to the facts as it finds them to be. Its determinations are immune from traditional forms of review pursuant section 60 of the FTT Act. These factors indicate that the Tribunal is exercising judicial power and is properly categorised as a court.... "
100Her Honour cites with approval the decision in State Rail Authority (supra) of Hope JA. While it is true that Her Honour at [25] indicated that the defendant did not contend the Fair Trading Tribunal was not a court, it seems clear from the passage at [16] that Her Honour did turn her mind to the issue of whether or not the Fair Trading Tribunal was in fact a court and concluded that it was a court. However, Her Honour did not have the benefit of the reasoning of the Court of Appeal in Skiwing which related to whether a Tribunal was a "court of a State" for the purpose of Commonwealth legislation.
101This matter is one reason for Smart AJ departing from the decision in Woodcrest.
102On the other hand, it is difficult to reconcile the view expressed by Smart AJ in Da Silva with the decision in Taylor Farms. Clearly Kirby J concluded the Commercial Tribunal (which was a predecessor of and had the same or similar attributes of the Consumer Trader and Tenancy Tribunal) was a court for state purposes- in particular the Law Reform Act.
103Also, Da Silva appears at odds with the decisions of the Court of Appeal, particularly that of Hope JA in State Rail Authority and does not appear consistent with the reasoning of Spigelman CJ at [29] in Skiwing where the Chief Justice considered indicia similar to those set out by Smart AJ (Skiwing at [26]- [27]) and accepted that the Administrative Decisions Tribunal could be a court for State purposes.
104In these circumstances, the decision of Smart AJ can be reconciled with the Court of Appeal decisions and Taylor Farms if one confines the decision to the meaning of a court for the purposes of exercising federal jurisdiction under the Corporations Act to order security for costs.
105In my opinion, the issue of whether a Tribunal is a court needs to be determined in the context of the relevant legislation being considered. Presently, that is both the Law Reform Act and the Consumer Trader and Tenancy Tribunal Act.
106The Tribunal is required to determine issues before it according to law. As indicated by Hope JA, when referring to an earlier decision of Yeldham J in Fairey Australasia Pty Ltd v Joyce [1981] 2 NSWLR 314 at 321, the Court of Appeal accepted that the Tribunal "is not concerned with "palm tree justice"" and "the Tribunal must act in accordance with and must apply the general law in determining the claim which has been made to it": see Hope JA in State Rail Authority at page 477. The authorities make clear the Tribunal is exercising judicial power. Hope JA accepted that the Consumer Claims Tribunal exercised judicial power (at 478D). The Consumer Trader and Tenancy Tribunal Act provides in section 28(3) that the Tribunal is to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". While this may be a general statement of the approach to be taken by the Tribunal where the rules of evidence do not apply, it suggests that issues of equity must be considered.
107Section 5 of the Law Reform Act provides that the rules of equity prevail over the rules of common law where a conflict or variance occurs in connection with any dispute. This is a requirement of the Law Reform Act. The grant of equitable relief is not a precondition to this statutory provision. Section 6 provides equitable defences available in the Supreme Court are also to be available in inferior courts.
108It would be a curious result that the Tribunal, when exercising judicial power and determining disputes according to law, should disregard the requirement expressed in section 5 of the Law Reform Act. On the other hand, section 5 can only be given effect if any equitable defence relevant to a claim is accounted for in exercising the judicial power conferred. This necessarily leads to the conclusion that the parliament intended that a Tribunal exercising judicial powers and making determinations according to law is a court for the purpose of section 6 of the Law Reform Act.
109Having regard to these matters, in my opinion the Consumer Trader and Tenancy Tribunal is an inferior court within the meaning of the Law Reform Act.
110The next question is whether or not a defence of equitable estoppel is a "ground of defence, equitable or legal" within the meaning of section 6 of the Law Reform Act or whether it is, by its nature (whether raised as a defence or as a positive claim) a claim for equitable relief.
111Again, there is conflicting authorities from single judges of the Supreme Court of New South Wales. Those decisions to the effect that an equitable defence is a substantive claim and outside the operation of section 6 of the Law Reform Act are the decisions of Taylor Farms and Wilson- which follows the decision in Taylor Farms.
112However, the decision of Rein J in Bushby is to the contrary. In that case, having set out the passages of Kirby J in Taylor Farms, Rein J said (at [25]) "it is clear that Kirby J in Taylor Farms did not take the view that promissory estoppel could not be used as a shield... But rather his Honours view was that if the tribunal did not have the remedy of injunction open to it, this would circumscribe the options available."
113His Honour went on to say of Kirby J's decision that;
"25. ... His Honour felt that a defendant should not be able to constrain the relief that a court might give by raising it in the inferior tribunal but, with respect, I do not see why it is not open to a defendant to do just that, provided what is advanced and the relief sought is within the jurisdiction of the relevant tribunal or court.
26. If promissory estoppel is not a defence but is properly characterised as an equitable claim for injunctive relief with the possibility of damages in lieu, as Mr Handley propounds in his book, then it follows that section 6 of the Law Reform Act does not empower the District Court to deal with it as a defence...
27. I acknowledge the considerable respect due to anything written by Handley AJA (as he is now), but I am disinclined to accept the view that promissory estoppel cannot be included as a defence, and I do so for the following reasons...
28. It follows, in my view, that a defendant can plead promissory estoppel as a defence. I then need to deal with the question of whether section 6 of the Law Reform Act gives the District Court jurisdiction to deal with the equitable defence.
114His Honour made reference to the English decision of Kingswood Estate Co Ltd v Anderson [ 1963] 2 QB 169 in which the English Court of Appeal upheld a County Court decision to give effect to an equitable defence, notwithstanding the County Court had no jurisdiction to grant specific performance (at [29]). Rein J then said:
"30. In Yahl, Master Allen, as His Honour then was, discussed Kingswood and noted that the learner authors of RP Meagher, WMC Gummow, and J RF Lehane, Equity Doctrines and Remedies (2nd edition, 1984), Butterworths, Sydney, contended that the equitable forms of defence referred to in section 6 of the Law Reform Act and its analogues should be given a more limited meaning, that is matters such as unclean hands all laches. Master Allen felt it unnecessary to decide the point, but held that "reliance", equitable estoppel and promissory estoppel were all within the category of defences that did not require independent relief. In Batley, Bruce J held that a defence of equitable estoppel could be dealt with by the Local Court.
31. ... I too do not need to determine whether Kingswood was correctly decided in relation to the Walsh v Lonsdale point, but the approach taken by the English Court of Appeal provide support for the view that section 6 of the Law Reform Act should not be read down, and with respect to those who hold a different view, I do not accept that the words of section 6 of the Law Reform Act should be read narrowly.."
115Of the decision of Adams J in Wilson (supra) Rein J said:
"32... His Honour seemed to hold that promissory estoppel is a defence not a claim. If equitable estoppel used as a shield is an equitable defence, then section 6 of the Law Reform Act requires full effect to be given to it by the District Court (and see United Telecasters). I am of the view that in a case where it is the defendant that asserts promissory estoppel, it is in fact an equitable defence to which the District Court is empowered and required by section 6 to give full effect. It can be seen by section 7 of the Law Reform Act that the power of the District Court to grant relief is not expanded by virtue of section 6, but should the District Court come to the view that the only appropriate relief is injunctive relief, section 7 of the Law Reform Act specifically permits it to grant the relief it is able to give, subject to terms and conditions, or to postpone the grant of relief. ....
33. I am of the view that Yahl and Batley were correctly decided, and therefore the District Court does have jurisdiction to deal with a defence of promissory estoppel by virtue of section 6 of the Law Reform Act.
34. I accept that a defendant could choose to issue a cross-claim to assert estoppel seeking injunctive relief, and that if pleaded that way, there is a lack of jurisdiction in the District Court to grant that relief. The conclusion that a claim for promissory estoppel cannot be heard in the District Court if pleaded as a cross claim is a most unfortunate one from a practical point of view, and it may be desirable that amendment been made to the DCA giving the District Court express power to grant an injunction in any claim for promissory estoppel. The position is even more deserving of attention if it be correct that even a defence of promissory estoppel cannot be entertained in the District Court."
116Rein J then dealt with what might happen if a cross claim were filed and how the District Court might transfer the proceedings to the Supreme Court which might, in turn, transferred back to the District Court the proceedings so as to enliven an enlarged jurisdiction by reason of section 144 of the Civil Procedure Act. For present purposes, these comments are not relevant.
117In my view, what is clear from the above is that His Honour did conclude that a defence of promissory estoppel is a defence within the meaning of section 6 of the Law Reform Act.
118The analysis of Rein J is, in my respectful opinion, correct and should be followed by the Tribunal. This is because where such a defence is successful, the consequence in proceedings in which the plea is raised as a defence is that the inferior court does not grant the remedy sought by the applicant/plaintiff and the withholding of a remedy is not properly to be considered granting equitable relief by way of remedy to the other party. Rather, it is in the nature of denying, postponing or granting limited relief (effectively "on terms and conditions") to the applicant/ plaintiff. No order is made in favour of the respondent/ defendant. This is consistent with section 7 of the Law Reform Act which does not extend jurisdiction to allow the grant of equitable relief but does allow the inferior court to "postpone the grant of relief, or grant relief (in favour of an applicant or plaintiff) subject to such terms or conditions of the nature of the case requires."
119Accordingly, I conclude that the Tribunal does have jurisdiction to determine a defence of equitable estoppel.
120In passing, I note there was considerable argument about whether the defence was indeed one of equitable or promissory estoppel or whether it is one of common law estoppel or merely an assertion the contract had been varied. For present purposes it is not necessary to resolve this debate or to rule on the issue of whether the defence can be made out. The evidence and a consideration of what occurred is relevant to determine the substantive issue and such an enquiry is inappropriate at this time.
121Accordingly, the application for transfer because the Tribunal has no jurisdiction to hear a claim involving a defence by way of equitable estoppel is not successful.
122For reasons that the Tribunal identified at the directions hearing, that is not an end of the matter.
123As indicated above, there are claims under the Trade Practices Act (the Australia Consumer Law is not applicable to this claim), claims under the Fair Trading Act, claims in negligence and claims for breach of contract (which may not be claims for breach of the statutory warranties) which the respondents submitted are not within the jurisdiction of the Tribunal by reason of section 48K of the HBA. For the purpose of disposing of this application it is sufficient to look at one of the classes of claim alleged in the alternative to the statutory warranty claims, namely the claims in negligence in each of the Macquarie Road and Amy Street proceedings. The reason for considering this class of claim is that causes of action based on negligence accrue when the party suffers damage. In this case the applicant asserts this occurred well after the works, when the successors in the title (the Owners Corporation of each of the strata plans for Macquarie Road and Amy Street) make claims against the applicant builder.
124There are significant disputes concerning whether or not the particular duty of care asserted in each case existed as a matter of fact, whether such duty in each case had been breached and when such breach occurred. These are matters ordinarily to be dealt with at a final hearing.
125However, the Tribunal must consider whether it has jurisdiction to hear and determine such disputes. It is both appropriate and convenient to do so as part of the present application to transfer in order to avoid the possibility that the matters proceed to a final hearing on all issues with the prospect that the Tribunal concludes it has no jurisdiction in the proceedings necessitating a further consideration of the issue of transfer.
126Section 48K of the HBA provides the Tribunal has jurisdiction to determine building claims, the limit of that jurisdiction being claims not exceeding $500,000. However there are time limits for the lodgement of applications affecting the Tribunal's jurisdiction which do not coincide with general law limitation periods applicable to particular claims. Where, by reason of the limitations in s48K the Tribunal has no jurisdiction to hear a case, the Tribunal may transfer the application to a court which has jurisdiction: see section 23 of the Consumer Trader Tenancy Tribunal Act. Prior to making an order for transfer it is necessary for the Tribunal to consider whether there is an action maintainable in the court so as to make such a transfer appropriate, or whether the application should otherwise be dismissed.
127For example, the Tribunal has jurisdiction to hear a claim for breach of statutory warranty if brought within a period of 7 years (see sections 18 E and 48K(7)). If the time to bring such a claim had expired, neither the Tribunal nor a court has the power to make an award of damages and so the claim should properly be dismissed because there is no entitlement to bring such claim beyond the period of 7 years specified in s18E of the Home Building Act. On the other hand, various limits apply to the Tribunal's jurisdiction to hear non-statutory warranty claims which do not coincide with the general law limitation periods that are applicable to court proceedings. For example, a building claim brought in the Tribunal relating to building goods or services that are required under a contract to be supplied to a claimant within a specified period can only be brought in the Tribunal if lodged not more than 3 years after the date on which the supply was required under the contract, whereas a court would ordinarily have 6 years from the date of any breach of contract to hear and determine such claim. In these circumstances, the lack of jurisdiction of the Tribunal may make it appropriate for proceedings to be transferred to a court of the jurisdiction.
128In addition to considering any jurisdictional limits applicable by reason of time limitations, which might justify transfer of the applications to a court, the Tribunal should also be satisfied the claim which is proposed to be transferred is otherwise maintainable at law. If not, then the Tribunal properly exercising its discretion should, in my opinion, dismiss the application rather than transfer the proceedings to a court.
129Section 48K and whether a claim in negligence was maintainable at law were dealt with by me in the decision of Glenzeil (supra).
130As indicated above, the parties made detailed written submissions concerning the proper interpretation of section 48K. The respondent contended that section 48K(3) was the applicable time limit for the Tribunal's jurisdiction for claims in tort. Section 48K(3) provides as follows:
(3). The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to all for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made).
131The respondents submitted (at paragraph 22 of their submissions dated 7 June 2013) that the views I expressed in relation to a claim by an owners corporation in respect of claim in negligence do not apply to the present situation "because the renderers clearly provided rendering services to the claimant. Section 48K (3) therefore applies".
132The applicant's submissions primarily address the issue of whether or not section 48K of the HBA provides a defence or a bar to the claims which have been made. However they do not directly address the issue of whether or not the Tribunal has jurisdiction to hear and determine a claim. This is a different question to whether or not a court of competent jurisdiction has jurisdiction to hear the claim for which applicable general law limitation periods must be addressed and applied.
133The applicant correctly identifies that section 48K does not fix a general limitation period for the bringing of the claim. This is found elsewhere. In the case of general law claims, the Limitation Act, 1969 is applicable. In respect of statutory warranty claims under the Home Building Act, the Home Building Act specifies the time within which proceedings must be commenced. This is found in section 18E of the HBA (as that legislation existed at the relevant time) which provides that:
18E Proceedings for breach of warranties
(1) proceedings for a breach of a statutory warranty must be commenced within 7 years after:
(a) the completion of the work to which it relates, or
(b) if the work is not completed:
(i) the date for completion of the work specified ward determined in accordance with the contract, or
(ii) if the is no such date, the date of the contract.
134While the Tribunal is to be chiefly responsible for resolving building claims (see section 48L of the HBA) the jurisdictional limits applicable by section 48K of the HBA apply to limit the time within which the Tribunal can hear and determine particular claims (as opposed to the time in which a claimant may otherwise bring the action in a court of competent jurisdiction.
135Accordingly, the issue remains as to whether or not the provisions of section 48K limit the jurisdiction of the Tribunal to hear and determine a claim in tort.
136It is common ground that a claim in negligence is capable of being a building claim for which the Tribunal has jurisdiction. In my opinion this is clear from the decision of the Court of Appeal in Grygiel v Bain & others [2005] NSWCA 218 (per Basten JA at [62]).
137In the present case, the duty of care asserted by the applicant arises in relation to the obligations of the respondent subcontractor renderers in the supply of services to the applicant builder under a contract. There is no regulation otherwise excluding such matters as building claims under the HBA. Accordingly, I am satisfied the claim in negligence is a building claim.
138The real issue is whether or not section 48K (3) or 48K (8) applies to limit the jurisdiction of the Tribunal to hear this claim.
139In Glenzeil I concluded that section 48K (3) did not provide a limitation on jurisdiction for the Tribunal to hear and determine a building claim being a claim in negligence by an Owners Corporation (see paragraph 146). In reaching that conclusion I said:
"142. It seems to me that a claim in negligence is not a building claim relating to goods or services that have been supplied "to" the Owners Corporation in the present case. Rather the claim relates to goods and services supplied to the developer by the builder.
143. Further, it seems to me that a claim in negligence does not relate to building goods or services that have been supplied "for" the Owners Corporation.
144. It is correct that the nature of these building works was the construction of a multi-unit development which was to become part of a registered strata plan, in consequence of which the Owners Corporation would receive the benefit of that part of the building goods and services relating to the construction of the common property. However in my opinion... the expression "supplied to or for the claimant" relates to a claimant to whom the original supply of building goods or services has been made or for whom it has originally been made.
145. A successor in title never receives the supply of goods or services nor can it be said the supply was "for" the successor in title."
140In the present case, the dispute is between the builder and the respondent subcontractor renderers. Unlike the position of the Owners Corporation in Glenzeil, goods or services have been supplied by the respondents to or for the applicant builder. It is in connection with the supply of these goods and services that the applicant contended a duty of care was owed. Therefore the provisions of section 48 K(3) applies to limit the jurisdiction of the Tribunal to hear and determine only those claims lodged within 3 years after the date on which the supply by the respondents to the applicant was made. Having regard to the date on which each of the Macquarie Road and Amy Street applications were lodged, it seems to me that both applications were lodged after the relevant dates and therefore the Tribunal has no jurisdiction to hear and determine these building claims. In that regard I am satisfied that:
(a)In the case of the Macquarie Road claim the supply was no later than March 2003 [see Raymond Draybi affidavit sworn 20 April 2012 at paras 44-46 and Tony Draybi affidavit sworn 5 October 2012 at para 105]; and
(b)in the case of the Amy Street claim the supply was no later than May 2005 [see Raymond Draybi affidavit sworn 20 April 2012 at paras 59-61 and Tony Draybi affidavit sworn 5 October 2012 at para 189]
141The next issue is whether, by reason of the conclusions I reached in Glenzeil a claim in negligence is maintainable at law. If not, it would be inappropriate to transfer such proceedings to a court.
142In passing, I note it is unnecessary to determine the factual issue of whether or not the claim in negligence has been brought within the general limitation period applicable as the respondents concede both the Macquarie Road and Amy Street claims in negligence have been brought within such limitation period and/or is a matter for trial (see the table at paragraph 18 of the respondents' submissions dated 7 June 2013.
143In Glenzeil I determined that such a claim was not maintainable at law.
144In reaching that conclusion I had analysed the decisions of the High Court in Bryan v Maloney, Woolcock and Perre v Apand Pty Ltd (1999) 198 CLR 180. Such analysis requires a court or tribunal to consider the contractual arrangements between the parties and whether or not, having regard to principles of vulnerability, the particular contract by its terms precludes the imposition of a duty of care and whether such a duty can exist concurrently with any contractual obligations: see Astley and others v Austrust Ltd 161 ALR 151.
145Such matters, if they were arguable, would militate in favour of transferring the proceedings to a court because the nature and extent of any duty of care owed is a matter properly determined at trial. This is particularly so in the present circumstances where there is a contractual arrangement constituted by an oral agreement, terms implied by statute and various correspondence and oral communications between the parties which might constitute variations.
146The only reason not to transfer the proceedings is because such a cause of action is not maintainable at law.
147In Glenzeil I concluded that an owners corporation/successor in title could not maintain such a claim because, inter alia, by the decision of McDougall J in Owners Corporation Strata Plan 72535 v Brookfield Ltd [2012] NSWSC 712, I was bound to conclude that where statutory warranties were available to an owners corporation/ successor in title, no duty of care is owed at law. This was the submission made by the present respondents in support of the contention that the proceedings should not be transferred (respondents submissions dated 7 June 2013 - paragraph 24).
148The respondents also submitted:
"25. It should also be noted that, unlike the position of an owners corporation or subsequent owner vis-a-vis a builder, the applicant in the present case had a direct contractual relationship with the renderers and therefore could, if he so chose, bargain for express contractual terms to protect its position and, in the circumstances, its degree of vulnerability (or lack thereof) falls within the scenario discussed by the High Court in Woolcock...
26. It would follow that the negligence claim is doing to file both in the Tribunal and any other Court, which would weigh against transferring the proceedings and in favour of dismissal."
149The applicant submitted that any decision on this aspect should await the decision of the Court of Appeal in the Brookfield litigation.
150Subsequent to the parties finalising their submissions, the Court of Appeal has delivered a decision in the Owners-Strata Plan No 61288 v Brookfield Australia Investments Ltd (supra). In overruling the decision of McDougall J in Owners-Strata Plan No 61288 the Court of Appeal determined:
(a)that a duty of care could arise concurrently with any contractual obligations, particularly where there was no express term of the contract to exclude such a duty (per Basten JA at [91]-(98).
(b)that the plurality of the High Court in Barclay v Penberthy 246 CLR 258 had concluded "the presence or absence of a claim in contract would not be determinative of a claim in tort" (per Basten JA at [38]) and that this approach should be followed, notwithstanding it is difficult to reconcile with the decision of the plurality in Woolcock (per McFarlane JA at [139]).
(c)that the statutory warranties under the Home Building Act conferred various rights upon parties to the contract (and successors in title) which could not be restricted or removed by agreement (per Basten JA at [104];
(d)that where statutory warranties apply to the whole of the work there is no basis to conclude that this fact alone affected the commercial basis upon which any work was priced (Basten JA at [99].
(e)that it was necessary to analyse whether a party was "vulnerable" as that expression has been explained by the High Court; and
(f)that each case must be analysed in terms of the claims made, whether or not it might be a novel application (per Basten JA at [107] and Leeming JA at [146].
151Further, Macfarlan JA concluded that the warranties imposed by Part 2C of the Home Building Act were intended to supplement, rather than limit existing rights of parties (at [134]).
152 Having regard to the above, it seems to me that the view I expressed in Glenzeil for rejecting the existence of a duty of care based on the earlier decisions of McDougall J should not be followed. Rather, a proper analysis of the facts and allegations made in this case may result in a court with appropriate jurisdiction concluding that a duty of care was in fact owed by the respondents to the applicant and that such duty has been breached. Whether or not such duty in fact exists and/or has been breached is a matter for final hearing. It is sufficient to conclude that the claims are arguable at law and that these applications should be transferred to a court of competent jurisdiction because the Tribunal does not have jurisdiction to hear and determine the claims made.
153The next question is to which court should the proceedings be transferred?
154One claim is within the jurisdiction of the District Court of New South Wales (Amy Street - $235,670.60) and one is within the jurisdiction of the Local Court of New South Wales (Macquarie Road claim - $40,285.30): see applicant's submissions dated 11 June 2013. While orders could be made to separate these proceedings and transfer one to the District Court and one to the Local Court, the disputes involved common questions of fact. For example, the respondents contend that the assumptions from which the estoppel is are said to arise in the Amy Street claim arose in consequence, in part, from conversations and instructions given in connection with performance of works under the Macquarie Road project. Accordingly, there will be common witnesses and issues of fact arising in respect of each of the claims and it would be undesirable to have the same issues litigated in two claims in different courts.
155The second consideration is that there is a "cross-claim" found in each of the defences, although as I have noted above, no separate application has been filed in respect of each cross claim and there is no procedure in the Tribunal which allows a party to make such a cross claim in that form in a home building claim. The size of the potential cross-claim is unclear. However the relief claimed is by way of damages and is likely to be within the jurisdiction of the District Court.
156In my opinion, both matters may conveniently be dealt with in the District Court and I am satisfied it is appropriate to make an order transferring both proceedings to the District Court of New South Wales pursuant to section 23 of the Consumer Trader and Tenancy Tribunal Act.
157While the respondents might again seek to agitate the issue of jurisdiction to hear a defence based on the grounds of equitable estoppel, having regard to the decision of Rein J in Bushby it seems to me the District Court would have jurisdiction to hear and determine both claims. Any further issues can be dealt with by the District Court.
158In relation to the issue of costs, each party has had some success. My preliminary view is that the costs of this application should follow the event and await the final determination of the dispute between the parties.
159In the event either party contends for a different order for costs, they should make a written application to the Tribunal within 14 days from the date of publication of these reasons, such application to be supported by written submissions and any evidence.