Owners Corporation SP 69470 v Owners Corporation SP 69948

Solicitors: Wilshire Webb Staunton Beattie Lawyers (Plaintiff) Doyle Edwards Anderson Lawyers (Defendant) File Number(s): 2014/00358849

Judgment

1. On 13 April 2017, Hatzistergos DCJ transferred these proceedings to the Supreme Court pursuant to s 144(2) of the Civil Procedure Act 2005 (NSW) ("CPA") on the basis that the District Court may lack jurisdiction to grant certain equitable relief sought by the plaintiff. When the matter came before me in my capacity as Duty Judge on 15 May 2017, both of the parties sought orders by consent that I remit the matter to the District Court under s 144(3)(b) of the CPA and that costs be in the cause.
2. Although the orders were sought by consent, I indicated that I proposed to reserve my decision in order to consider whether it is appropriate for this Court simply to remit a matter that had been transferred to this Court without further consideration. I indicated at that time that I would deliver my decision today and I excused both parties from further attendance.
3. Having considered the matter further, I am satisfied that it is appropriate to make the orders sought. My reasons for being so satisfied are as follows.
4. Section 144 of the CPA is in these terms: "(1) This section applies to proceedings under Subdivision 2 of Division 8 of Part 3 of the District Court Act 1973. (2) If, during proceedings to which this section applies, the District Court decides that it lacks, or may lack, jurisdiction to hear and dispose of the proceedings, the District Court must order that the proceedings be transferred to the Supreme Court. (3) Proceedings that are transferred to the Supreme Court under subsection (2): (a) are to be continued in the Supreme Court: (i) as if the proceedings had been duly commenced in the Supreme Court on the date on which they were commenced in the District Court, and (ii) as if any cross-claim in the proceedings had been duly made in the Supreme Court on the date on which it was made in the District Court, or (b) if the Supreme Court so orders, are to be remitted to the District Court and continued in the District Court as if they had not been transferred. (4) The District Court has, and may exercise, jurisdiction to hear and dispose of proceedings the subject of an order by the Supreme Court under subsection (3) (b), including such jurisdiction as is necessary to determine any question arising in any such proceedings. (5) If, during proceedings to which this section applies, the District Court decides that it is appropriate to do so for any reason other than the reason referred to in subsection (2), the District Court may order that the proceedings be transferred to the Supreme Court. (6) Proceedings that are transferred to the Supreme Court under subsection (5), are to be continued in the Supreme Court: (a) as if the proceedings had been duly commenced in the Supreme Court on the date on which they were commenced in the District Court, and (b) as if any cross-claim in the proceedings had been duly made in the Supreme Court on the date on which it was made in the District Court. (7) Subject to the rules of court applicable in the Supreme Court, the power of the Supreme Court to make orders as to costs includes a power to make orders with respect to the costs of: (a) the application for, and the making of, an order under subsection (2) or (5), and (b) any step taken in the proceedings before an order under subsection (2) or (5) was made. (8) The making of an order under subsection (2) or (5) does not invalidate any order previously made by the District Court in the proceedings."