Roberts v Chan & Naylor Parramatta Pty Ltd

Introduction

1. This is an appeal against a decision of a Senior Member of the Tribunal dismissing an application by the appellants on the basis that the Tribunal had no jurisdiction to determine the application.
2. The appellants had sought in the Consumer and Commercial Division of the Tribunal an order for the payment of $29,291.55, alleged to be the loss suffered by reason of negligent advice provided by the respondents.
3. The background facts are set out in the decision under appeal as follows: 6. Ms Roberts alleges that on about 11 September 2006 she sought advice from Mr Nelson in the presence of Mr Gerard Mendonca (a then employee of Chan & Naylor) concerning the structure to be used to purchase a block of land. She alleges that she was advised to purchase the property in trust, but that she was not advised of the land tax implications, being that she would not be entitled to the exemption in land tax if she elected to live in the property as her principal place of residence. That was because the property was held in trust by a Corporation of which she was only the director and not by her in her individual capacity. 7. It is not in contention that the subject land was ultimately purchased by the second applicant, Asset Rich [Group] Pty Limited on or about 14 September 2006 and the property settled in about 26 October 2006. Ms Roberts agrees that she began residing in the property sometime in 2009 after a residence was constructed on the land. She states that on 1 May 2013, Asset Rich Group Pty Limited received a letter from the Chief Commissioner in regards to land tax liability and seeking further particulars from Ms Roberts. The letter included the following information: Land Tax Registration - additional information on trust details I am writing to advise you that you may have to pay land tax of property you currently own or have previously owned. What happens next? Based on your information, I will either issue you with an assessment or confirm whether you are entitled to an exemption. If any of the information is not provided, we will assess the trust as a special trust. 8. On 30 July 2014, the Chief Commissioner issued a Land Tax Assessment Notice to Ms Roberts for land tax in respect of 2010, 2011, 2012 and 2013 tax years in the sum of $29,291.55. That is the amount which Ms Roberts now seeks from the respondents.
4. Ms Roberts' application had been commenced in the Tribunal on 24 April 2016. The proceedings had at one stage been transferred to the District Court but were subsequently transferred back to the Tribunal.
5. Ms Roberts alleged that the respondents were negligent in advising her to purchase the property through a trust and failing to advise her of the taxation consequences of doing so. As noted by the Senior Member, Ms Roberts claimed to have suffered loss through her liability to pay land tax in respect of the property from 2010 to 2013.
6. At the hearing below the corporate trustee which acquired the property, Asset Rich Group Pty Ltd, was joined as a party.
7. Asset Rich Group Pty Ltd was not initially a party to the appeal. Rule 29(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) required that Asset Rich Group Pty be a party to the appeal. At the hearing of the appeal Ms Roberts, as sole director of Asset Rich Group Pty Ltd, consented to Asset Rich Group Pty Ltd being joined as an appellant to the appeal and the Appeal Panel ordered that Asset Rich Group Pty Ltd be joined as an appellant to the appeal.

The Decision under appeal

1. When the matter came before the Senior Member, it was clear in the Senior Member's opinion that the hearing time which had been allocated was insufficient to hear the whole matter. In those circumstances the Senior Member determined that the Tribunal would first hear a preliminary challenge to jurisdiction that had been raised by the respondents and then proceed to hear the matter to finality if jurisdiction was found.
2. The appellants' claim was a "consumer claim" within the meaning of the Fair Trading Act 1987 (NSW). The Tribunal is given jurisdiction to determine consumer claims by s79J of the Fair Trading Act which is in Division 2 of Part 6A of the Fair Trading Act and which provides: 79J General statement of jurisdiction The Tribunal has jurisdiction, except as otherwise provided by this Division, to hear and determine a consumer claim the subject of an application under this Division.
3. The respondents' jurisdictional argument was founded upon Section 79L of the Fair Trading Act, which is also in Division 2 of Part 6A of the Act. That section provides: 79L Limitation periods (1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. (2) Nothing in this section affects any period of limitation under the Limitation Act 1969.
4. The respondent submitted that the cause of action giving rise to the appellants' claim first accrued more than three years before the proceedings were commenced and that, by virtue of s 79L(1)(a), the Tribunal did not have jurisdiction to hear and determine the claim.
5. The Senior Member considered the respondents' submission from [12] of her decision as follows: 12 The respondent states that the relevant time in relation to when the cause of action giving rise to the claim first accrued was in 2009 when the applicant moved into the premises and that resulted in her actual loss she was not able to claim the exemption for land tax as the trust was a special trust. 13 The suffering of damage is a question of fact even if the plaintiff was not aware of it (Wilson v Rigg) [2002] NSWCA 246 at [35]; Hawkins v Clayton (1988) 164 CLR 539 at 543, 560-561 and 587-578). 14 This is a case of pure economic loss. Perre v Apand [1999] HCA 36, [(1999) 198 CLR 180] has long established that a limitation period for a professional negligence claim may expire before the client is aware of either of the negligence or the loss. The limitation period commences when some non-negligible loss is first suffered, even if the main loss is suffered a lot later.
6. The Senior Member quoted from the Court of Appeal decision in Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 where at [13] to [15] Handley JA set out the relevant principles applicable to a cause of action in negligence: 13 A cause of action in negligence is not complete until the plaintiff first suffers actual loss or damage. Damage which is prospective or contingent does not qualify as actual damage for this purpose. See Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 (Wardley) at 530, 531 per Mason CJ, Dawson, Gaudron and McHugh JJ. 14 In order for the plaintiffs' cause of action to be complete, the plaintiffs' actual damage must be "measurable" (Wardley at 531), or, in the words of Lord Reid in a personal injuries case (Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772) the damage must be "beyond what can be regarded as negligible". 15 This was an action to recover damages for the plaintiffs' economic loss and the courts have developed special rules for distinguishing between actual and prospective damage in this area. Time commences to run under the Limitation Act when damage accrues, even if the plaintiff is not aware of it: see Cartledge v E Jopling & Sons Ltd (1963) AC 758 at 782-3; Hawkins v Clayton (1988) 164 CLR 539 at 543, 560-561, 587-8 and 598-602 and Wardley (1992) 175 CLR 514 at 540, 554-5.
7. The Senior Member also quoted paragraphs [32] to [36] of the decision of an Appeal Panel of this Tribunal in Sacks v Hammoud [2016] NSWCATAP 22 which stated: 32 The term "cause of action" is not defined by the Consumer Claims Act or the ACL NSW. In the context of statutory provisions limiting the period in which proceedings can be commenced, the term has been held to refer to the elements necessary to give rise to a right of action. For example, in Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77; (1997) 72 FCR 581, Sackville J at 595 referred to the classic formulation of a "cause of action" given by Brett J in Cooke v Gill (1873) 8 LR CP 107 at 116: '[C]ause of action' has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to traverse. 33 In Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at 245, Wilson J wrote: [T]he concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage …Knowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action. 34 Applying these principles, for the purpose of s 7(4)(a) of the Consumer Claims Act, a cause of action "first accrues" when facts which constitute the elements of the relevant cause of action crystallise or combine so that all the elements necessary to entitle a person to make a consumer claim are present. 35 When the cause of action arises is a question of fact and requires the identification of the applicable measure of damages: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 (Wardley) at 526. 36 In Wardley, the majority (Mason CJ, Dawson, Gaudron and McHugh JJ) commented at 533 on the appropriateness of determining the question of whether proceedings are brought in time in interlocutory proceedings: We…state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
8. The Senior Member concluded: It is clear in this case that Asset Rich Group Pty Ltd has at all material times been the registered proprietor of the property. S[ection] 8 of the Land Tax Management Act 1956 (NSW) provides that: Date of ownership for purpose of land tax Land tax shall be charged on land as owned at midnight on the thirty first day of December immediately preceding the year for which the land tax is levied. 18 Once a liability for land tax arises, the Chief Commissioner has an obligation [to] issue an assessment: Gunasti v Chief Cmr of State Revenue [2012] NSWADT 218; 90 ATR 906 at [29]-[34] and Joukhador v Chief Cmr of State Revenue [2015] NSWCATAD 43 at [12]-[13] [1] . 19 The respondent has stated that the cause of action arose when Ms Roberts moved into the house and could not claim the exemption because it was a special trust. It may be that the cause of action arose when the land was bought in trust by the second applicant as from that point on Ms Roberts lost her right to an exemption. In any case, when Ms Roberts moved into the property in 2009 she was not able to claim the exception for land tax and that was her actual loss. The Tribunal finds that whether it was in 2006 or 2009, Ms Roberts' cause of action has arisen more than three years prior to her making her claim. The fact that an assessment was not issued until a later date (in the present case on 30 July 2014) is irrelevant.
9. The Senior Member dismissed the application for lack of jurisdiction.

Grounds of Appeal

1. The appellants' grounds of appeal were as follows: 1. The Tribunal erred in finding that no jurisdiction exists to determine the application. 2. The Tribunal erred in failing to consider and failing to give adequate written reasons for not granting an extension of time under Section 41 of Civil and Administrative Tribunal Act 2013, if required, to plead a cause of action for breach of contract. 3. The Tribunal erred in having denied procedural fairness to Melinda Roberts by failing to consider and failing to give written reasons why Wilson proceedings precedent of Senior Member P Boyce accepted by Hon. Appeal Panel on jurisdiction is inaccurate.
2. The appellants also sought leave to appeal on the grounds: The decision is not fair and equitable because the Tribunal is bound by its own decision in Wilson proceedings accepted by the Hon. Appeal Panel and failed to consider, failed to give written reasons and failed to follow this precedent on jurisdiction.

Grounds 1 and 3 and the Application for leave to appeal

1. As Grounds 1 and 3 and the application for leave to appeal all raise a similar issue it is convenient to deal with them together. Each of the appellants' first and third grounds of appeal and the application for leave to appeal relies upon the decision of Senior Member Boyce in Wilson v Chan & Naylor Parramatta [2016] NSWCATCD 20 (Wilson). That decision related to a claim by another client of Chan & Naylor Parramatta alleging negligent advice resulting in economic loss. At [65] the Senior Member stated: "In the case of a cause of action in tort, such as negligence, the cause of action accrues when the damage is discovered."
2. Senior Member Boyce did not cite authority for that proposition.
3. The appellants submitted, in reliance upon that proposition that the cause of action did not accrue until Ms Roberts became aware that she was potentially liable for land tax on the property, upon receipt of the letter from the Chief Commissioner on 1 May 2013.
4. In Wilson at [72] Senior Member Boyce found that the applicant's cause of action in that case first accrued on 18 February 2013 "being the date the applicant was first aware of the potential losses that he would suffer as a result of the respondent's alleged failure to advise him" and that the applicant's claim in negligence had been brought within the applicable three year time limit.
5. However Senior Member Boyce dismissed the claim on the basis that: "The Tribunal is unable to make a finding that the respondent failed to comply with its obligations to supply services with all due care and skill or in breach of its duty of care" (at [85]).
6. That decision was the subject of an appeal (Wilson v Chan & Naylor Parramatta [2016] NSWCATAP 236). The appeal was allowed, and the proceedings were remitted to the Consumer and Commercial Division, on the basis that the Tribunal had failed to give consideration to whether the applicant should have been granted an adjournment in light of the late filing of evidence by the applicant and a late application by the applicant to amend his application and join a further party.
7. The Appeal Panel made no comment on the findings of the Senior Member at [65] and [72] which were not essential to the Senior Member's decision to dismiss the proceedings.
8. In those circumstances it cannot be said that the Appeal Panel in any way endorsed the finding of the Senior Member.
9. The appellants submit that the dictum of Senior Member Boyce in Wilson at [65] was supported by the decision of an Appeal Panel of this Tribunal in Sacks v Hammoud [2016] NSWCATAP 225.
10. In that decision the Appeal Panel determined that a consumer claim was not brought outside the three year limit on the jurisdiction of the Tribunal. The claim in that case related to the installation by the respondent of windows and sliding doors in the applicant's home in May 2011. In February 2013 "during a torrential downpour" the applicant's home suffered water damage. The applicant alleged that the damage was caused by the respondent's negligence. The application was commenced in June 2015. At first instance the application was dismissed on the basis that the Tribunal did not have jurisdiction as the application was brought more than three years after the cause of action accrued. The Appeal Panel set aside that decision.
11. Paragraphs [32]-[36] of the decision of the Appeal Panel are set out at [14] above. In paragraphs [40] to [45] of that decision the Appeal Panel canvassed a number of authorities concerning when a cause of action first accrues: 40. In Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 at 587, Deane J explained: A cause of action in negligence is complete when the damage caused by the breach of duty is sustained. It is at that time that, in the ordinary case, the cause of action 'first accrues' for the purposes of a provision such as s 14(1) of the Limitation Act [(1969) NSW]. 41. In Scarcella v Lettice [2000] NSWCA 289; 51 NSWLR 302 (Scarcella) at [13], the Court of Appeal emphasised that potential or contingent damage does not qualify as actual damage for the purpose of determining when the cause of action first accrues. Actual damage must be sustained. See also Wardley at 530, 531. For the cause of action to be complete, the actual damage must be "measurable" and be "beyond what can be regarded as negligible": Wardley at 531, Scarcella at [14]. 42. Where the alleged breach of duty relates to the negligent construction of a building, it is now "orthodox doctrine in much of the common law world" that such loss accrues when "the defects become manifest or are otherwise discovered": Scarcella at [16], citing Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 503-5; see also Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181 (Cyril Smith) at [10]. 43. Cyril Smith concerned latent defects in a high-rise residential building. The Court held (at [17]-[19] per Basten JA) that such cases constituted an exception to the general rule that a cause of action in negligence accrues when the material damage (which may not be fully manifest) is first suffered. Following the Victorian decision of Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27, Basten JA (at [17]) stated the test for when a cause of action accrues in such cases: [E]ven where actual damage caused by the latent defect in the building has been suffered more than six years before the commencement of the litigation, the cause of action does not accrue until the link between the physical manifestation and the underlying defect is known or ought to be known. 44. In McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729, the Supreme Court dealt with a case concerning a forged artwork. The plaintiff bought the painting at auction in 2000. Ten years later, when she was preparing to sell it, she discovered that it was a forgery. She brought proceedings for, among other things, misleading or deceptive conduct against the auctioneer, Christies, and an agent the plaintiff had retained to bid on her behalf at the auction, Vivien Sharp. In addition, the plaintiff brought proceedings against Ms Sharp in negligence. 45. A limitation defence was raised by the defendants, who claimed that the loss or damage had been suffered immediately upon purchase of the art work. That argument was rejected by the Supreme Court. Bergin CJ in Eq held at [227]-[228] that reasonable diligence could not have disclosed the defect to the plaintiff and that therefore "the plaintiff suffered loss when the defect in the painting was discovered".
12. The Appeal Panel held at [47]: Applying the above principles, and assuming Mr Sacks is able to establish each of the elements of an action in negligence against Mr Hammoud, the determination of when the cause of action first accrued requires the Tribunal to make a factual finding about when the alleged damage was first discovered or with reasonable diligence could have been discovered.
13. That decision was clearly founded upon the proposition that the defect in the installation of the windows and doors was (or at least might have been) a latent defect. The proceedings were remitted to the Consumer and Commercial Division for determination including determination when the defect was first reasonably discoverable.
14. The Appeal Panel decision in Sacks v Hammoud is not authority for the proposition stated by Senior Member Boyce in Wilson at [65] which, if intended to state a general proposition applicable in all cases of negligence, is plainly contrary to authority binding on this Tribunal.
15. If the respondents were negligent, the cause of action in this case first accrued when, in reliance upon the respondents' advice, the appellants acted in such a way that damage was inevitable.
16. As we understand the appellants' case, it was that, by reason of the respondents' negligence, Ms Roberts did not purchase the property in her own name and thereby lost the benefit of the exemption from land tax which would have been available if she had purchased the property in her own name. In those circumstances, any loss arising from the respondents' alleged negligence was sustained when the appellants became liable to pay land tax which Ms Roberts would not have been liable to pay if the property had been purchased in her own name.
17. Liability to land tax arises by operation of law. It is not contingent upon a decision of the Chief Commissioner of State Revenue to issue an assessment. As was held by Senior Member Walker in Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133 at [12] - [13]: 12 …[L]iability to land tax is created by the LTM Act [Land Tax Management Act 1956 (NSW)], and although the Chief Commissioner administers that Act, he does not impose the liability himself. That liability is created by direct operation of the LTM Act: Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218. Secondly, although the use of the word "may" in s 8 might suggest that the Chief Commissioner has a discretion as to whether to make an assessment or not, the function has been held to be mandatory rather than merely facultative; Gunasti at [29] - [34]. 13 Consequently, once the LTM Act by operation of law makes a taxpayer liable to pay land tax, the Chief Commissioner is required to act, and in so doing to give effect to the relevant taxation law, by generating an appropriate assessment: see Gunasti at [32]. Even if the Chief Commissioner were to fail to act, the liability to land tax created by ss 7, 8 and 9 of the LTM Act would remain in effect.
18. As the Senior Member recorded in paragraph [17] of her decision (set out at [15] above), s 8 of the Land Tax Management Act 1956 (NSW) provides that land tax is charged each year on land owned at midnight on 31 December in the preceding year. The appellants' liability to pay land tax on the property therefore arose when Asset Rich Group Pty Ltd held the property at midnight on 31 December 2006.
19. The exemption from land tax of the principal place of residence of a natural person arises pursuant to s 10(1)(r) and Schedule 1A of the Land Tax Management Act. Clauses 2 and 6 of Schedule 1A relevantly provide: 2 Principal place of residence exemption (1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is: (a) a parcel of residential land, or (b) a strata lot or, subject to this Schedule, land comprised of 2 or more strata lots. (2) Land is not used and occupied as the principal place of residence of a person unless: (a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or (b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence. (3) If the owner of land is entitled to the exemption conferred by this Schedule, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner's entitlement to the exemption. (4) The exemption conferred by this Schedule is referred to as the principal place of residence exemption. (5) The principal place of residence exemption is subject to the restrictions set out in Part 4. 6 Concession for unoccupied land intended to be owner's principal place of residence (1) An owner of unoccupied land is entitled to claim the land as his or her principal place of residence if the owner intends to use and occupy the land solely as his or her principal place of residence. In such a case, the owner is taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as his or her principal place of residence. (2) This clause does not apply unless: (a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and (b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and (c) the intended use and occupation of the land is not unlawful. … (7) This clause does not apply in respect of land owned by a person if: (a) the person or any member of the person's family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under section 9C or 9D or under this Schedule, or (b) the person owns land outside New South Wales that is the principal place of residence of the person or a member of the person's family (within the meaning of clause 12), or (c) the land, or the land if combined with any adjoining land of which the person is an owner, is capable of having more than 2 residences or residential units lawfully built on it.
20. Ms Roberts' evidence was that the property was always intended to be her home. On that basis, by reason of the exemption set out in clause 6 of Schedule 1A to the Land Tax Management Act, and subject to the exclusions set out in sub-clause 6(7), if the property had been in her name, she would have been entitled to an exemption from land tax from the time of acquisition.
21. If Ms Roberts did not always intend the property to be her home, or if one of the exclusions in sub-clause 6(7) applied, if the property had been in her name, Ms Roberts would have been entitled to an exemption from land tax for the years following the date on which she took up occupation of the property as her principal place of residence, by reason of the principal place of residence exemption set out in clause 2 of Schedule 1A.
22. Thus, if clause 6 of Schedule 1A would have applied, the appellants' cause of action, if established, was complete in 2006 (either on 26 October when the purchase of the property by Asset Rich Group Pty Ltd was completed or on 31 December 2006 when the liability to land tax accrued). If clause 6 would not have applied, the appellants' cause of action, if established, was complete in 2009 (either when Ms Roberts moved into the property as her principal place of residence or on 31 December when the liability for land tax for the following year accrued).
23. The possible application of clause 6 of Schedule 1A was not apparently explored in the evidence before the Senior Member. It was not necessary to do so as, whether or not clause 6 would have applied, the commencement of the proceedings was more than three years after the cause of action accrued and accordingly the Tribunal had no jurisdiction to determine the appellants' claim.
24. Insofar as the appellants assert that the Tribunal made an error of law through its failure to give reasons why it did not follow the decision in Wilson, there are two short answers to that submission.
25. First, as an Appeal Panel of the Administrative Decisions Tribunal held in Battenberg v Union Club Ltd [2005] NSWADTAP 20 at [42] (citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-270): "The duty to give adequate reasons does not mean that the Tribunal has to decide every matter which is raised in argument".
26. In her decision the Senior Member referred at some length to a number of decisions which are binding upon the Tribunal. The Senior Member's reasons adequately and thoroughly explain why the proceeding was brought more than three years after the cause of action accrued and the Tribunal had no jurisdiction. The failure to refer to a decision of a single member of this Tribunal cannot be said to have the result that the reasons of the Senior Member were inadequate.
27. Secondly, even if the Senior Member had made an error of law in not giving reasons for not following the decision in Wilson, that would not justify an Appeal Panel upholding the appeal, as it is clear that the relevant statement in Wilson was, as noted above, contrary to authority binding upon this Tribunal.
28. In those circumstances, even if, contrary to our conclusion, the Senior Member should have addressed the decision in Wilson, doing so should not have affected her decision.
29. We note that, in reply submissions, the appellants submitted that because the proceedings had, shortly after being filed in the Tribunal, been transferred to the District Court, an issue estoppel arose preventing the respondent from raising the issue of jurisdiction.
30. This argument was not apparently raised before the Member below and is not raised by the Notice of Appeal. It is in any event erroneous. An issue estoppel can only arise in respect of a matter essential to a decision: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-532; Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20 at [76]-[78]. It was not necessary, before the Tribunal could transfer the proceedings to the District Court, that the Tribunal have jurisdiction to determine the claim. The very reason for the transfer was that Ms Roberts wished to increase the amount claimed from $40,000 to $175,000. A claim in that larger amount was outside the jurisdiction of the Tribunal. In other words the reason for the transfer was that the claim was outside the jurisdiction of the Tribunal.
31. Section 79L of the Fair Trading Act provides that the Tribunal does not have jurisdiction to "hear and determine" a consumer claim if the cause of action giving rise to the claim first accrued more than three years before the date on which the claim is lodged.
32. The power of the Tribunal to transfer proceedings in the Consumer and Commercial Division to a court arises pursuant to clause 6(1) of Schedule 4 to the Civil and Administrative Tribunal Act which provides: 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.
33. The fact that the Tribunal may not have jurisdiction to hear and determine a claim made in proceedings commenced in the Consumer and Commercial Division of the Tribunal does not mean that the proceedings are not "proceedings for the exercise of a Division function", (as defined in clause 1 of Schedule 4) or that the Tribunal does not have the power to transfer the proceedings to a Court.
34. Moreover, the parties cannot by conduct vest jurisdiction in the Tribunal. There was no express determination by the Tribunal that it had jurisdiction before the matter was transferred. The conduct of the respondents in not pressing any objection to jurisdiction before the initial transfer of the proceedings to the District Court did not and could not vest jurisdiction in the Tribunal that it did not otherwise have.
35. Therefore appeal grounds 1 and 3 and the appellants' application for leave to appeal must fail.

Ground 2

1. The appellants included in the documents filed in support of the appeal an "Application for miscellaneous matters" filed in the proceedings below on 27 September 2017 (that is about two weeks before the hearing below). By that application Ms Roberts sought: "An order that extension of time, if required, be granted under section 41 of Civil and Administrative Tribunal Act 2013 to join under section 44 of Civil and Administrative Tribunal Act 2013 additional parties listed in Annexure A attached to this application and to include a cause of action for breach of contract."
2. The additional parties referred to in the annexure were Asset Rich Group Pty Ltd, which was sought to be joined as an additional applicant, and related parties of the respondent which were sought to be joined as additional respondents.
3. The document contains no indication of the substance of the "cause of action for breach of contract" which Ms Roberts sought to raise.
4. In response to the appellants' second ground of appeal the respondents submitted that the appellants' case should not be entertained as the appellants had failed to press the application to amend the proceedings before the Senior Member. Accordingly, the respondents submitted, there was no error in the Member failing to permit the amendment of the appellants' case or in failing to grant an extension of time to do so.
5. The parties did not put before the Appeal Panel any transcript or other evidence of what transpired at the hearing below. We note that the Senior Member dealt with the application to the extent that it sought to join Asset Rich Group Pty Ltd as an additional applicant. The Senior Member did not address the balance of the application in her reasons for decision. In the absence of a transcript or other evidence to establish that the application was pressed before the Senior Member, we would not be prepared to conclude that the Senior Member erred by failing to address the application insofar as it sought to include additional claims and sought an extension of time to do so.
6. The respondent further submitted that, in any event, any amendment of the original application to raise a cause of action in contract would be futile, as any such cause of action would have arisen upon the breach of contract which, on the appellants' own case, must have been when Ms Roberts was given the allegedly negligent advice in 2006.
7. The appellants submitted that the Tribunal should have extended the time for filing a claim in contract pursuant to s 41 of the Civil and Administrative Tribunal Act. That section provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
8. The appellants referred to Armee v Brealey [2017] NSWCATAP 141 where an Appeal Panel of this Tribunal stated at [137]-[139]: 137 The purpose of sections similar to s 41 is to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced (Sola Optical Australia Pty Limited v Mills (1987) 163 CLR 628 at 635, approved in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.) 138 For an applicant to obtain an extension of time she/he must show that it is fair and just for the extension to be given (Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532D per Gleeson CJ. See also at 541 F - G - "whether, having regard to all the circumstances of the case, it is fair and just, to grant or refuse the application," per Powell JA. See also at 539B - C per Kirby P where his Honour stated the test as whether it is just. See also Hall v Nominal Defendant (1966) 117 CLR 423 at 429 per Barwick CJ where the test was stated as - whether it is just in all the circumstances to grant or refuse the application. See also per Barwick CJ at 433 and 435 - a power to extend that time is given to a court of law so that justice may be done according to the circumstances.) 139 We are satisfied that leave to appeal from the interlocutory decision to refuse an extension of time to commence proceedings for the mould related claims should be granted. There is nothing stated in the Tribunal Member's reasons as to whether the appellant knew that there was a time limit of three months (or any time limit) on the commencement of proceedings for breach of a residential tenancy agreement. There is nothing in the Tribunal Member's reasons to show that she considered whether it was fair and just for the extension to be given.
9. That decision related to an application to extend the time limit for commencement of proceedings in respect of a breach of a residential tenancy agreement pursuant to s 190 of the Residential Tenancies Act 2010 (NSW) which permitted such an application to be brought "within the period prescribed by the regulations".
10. By virtue of regulation 22(9) of the Residential Tenancies Regulations 2010 (NSW) the prescribed period was "within 3 months after the applicant becomes aware of the breach".
11. The provisions of s 190 of the Residential Tenancies Act and regulation 22 of the Residential Tenancies Regulations are distinguishable from the provisions of s 79L of the Fair Trading Act. Section 190 requires proceedings to be brought within a specified time. Section 79L provides that the Tribunal does not have jurisdiction to hear and determine an application not brought within the specified time.
12. In our view s 41 of the Civil and Administrative Tribunal Act only extends to matters in respect of which the Tribunal has jurisdiction. In our view it is clear that that provision does not permit the Tribunal to extend its own jurisdiction in the manner suggested by the appellants, by extending the time for commencement of proceedings under the Fair Trading Act.
13. We agree with the Respondents' submission that any amendment of the application to raise a claim for breach of contract would have been futile, as the proceedings were commenced more than three years after any cause of action for breach of contract arose and the Tribunal had no discretion to extend the time within which the proceedings were required to be commenced.
14. Accordingly the application for leave to appeal will be refused and the appeal will be dismissed.

Costs

1. The respondents submitted that the appeal should be "dismissed with costs" but made no further submission in support of their application for costs.
2. Pursuant to s 60 of the Civil and Administrative Tribunal Act each party to proceedings is to pay the party's own costs unless the Tribunal determines that there are special circumstances warranting an amount of costs.
3. However rules 38 and 38A of the Civil and Administrative Tribunal Rules provide as follows: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
4. It is apparent from documents filed by the parties on the appeal that, pursuant to leave granted by the Senior Member at first instance, the respondents have made application for the costs of the proceedings at first instance.
5. The Appeal Panel was not informed of the outcome of that application. It is apparent that one issue arising in relation to the costs at first instance is whether the amount in issue in the proceedings below exceeded $30,000, as the amount sought in the initial application was apparently $40,000.
6. No such issue could arise in relation to the appeal proceedings. The amount in issue on the appeal was at all times $29,291.55, being the amount of the claim pressed by the appellants at the hearing before the Senior Member.
7. Therefore, even if the provisions of rule 38 of the Civil and Administrative Tribunal Rules were applicable at first instance, which we do not determine, with the result that rule 38A requires the Appeal Panel to apply rule 38 in relation to the costs of the appeal, the requirements of rule 38(2)(b) are not satisfied in respect of the appeal: Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. There is no suggestion that rule 38(2)(a) might be applicable.
8. Accordingly, before we can make an order in respect of the costs of the appeal we must be satisfied that there are special circumstances.
9. The respondents did not make any submission in support of the proposition that there are special circumstances in relation to the appeal and we do not find there are special circumstances. The result is that the respondents' application for an order for costs will be dismissed and, by virtue of s 60 of the Civil and Administrative Act, each party will bear its own costs of the appeal.

Orders

1. The orders we make are: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Respondent's application for costs dismissed.

Endnote

1. The reference to Joukhador v Chief Commissioner of State Revenue should be to Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133 at [12] - [13] (which is cited in Joukhador at [38]). 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2018