The Owners – Strata Plan No 47035 v Athens

Medium Neutral Citation: The Owners – Strata Plan No 47035 v Athens [2025] NSWSC 1588

Hearing dates: 8 – 17 December 2025

Date of orders: 19 December 2025

Decision date: 19 December 2025

Jurisdiction: Common Law

Before: Elkaim AJ

Decision: 1. Proceedings 2019/00388435 are transferred pursuant to cl 6 of sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) to the New South Wales Civil and Administrative Tribunal.
2. Noted that the costs of the whole of the proceedings form part of the transfer to the above Tribunal.

Catchwords: COURTS AND TRIBUNALS – jurisdiction – jurisdiction of the NSW Supreme Court and NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 5(3) - where proceedings commenced in NSW Civil and Administrative Tribunal (NCAT) – regarding water ingress into penthouse lot – duplication of issues in NCAT and the NSW Supreme Court – both parties accept the NSW Supreme Court’s lack of jurisdiction – question of appropriate consequential orders – whole matter transferred to NCAT

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cll 5, 6
Strata Schemes Management Act 1996 (NSW), ss 62
Strata Schemes Management Act 2015 (NSW), ss 106, 232

Cases Cited: Champerslife Pty Ltd v Manojlovski & Anor [2010] 75 NSWLR 245; [2010] NSWCA 33
Johnson v Gore Wood & Co [2002] 2 AC 1
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; [1981] HCA 45
Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284

Category: Principal judgment

Parties: The Owners – Strata Plan No 47035 (Plaintiff/Cross-Defendant)
Peta Athens (Defendant/Cross-Claimant)

Representation: Counsel:
A Di Francesco (Plaintiff/Cross-Defendant)
F Corsaro SC / M Auld / T O’Connor (Defendant/Cross-Claimant)
Solicitors:
Gilchrist Connell (Plaintiff/Cross-Defendant)
Williiam Cotsis & Associates (Defendant/Cross-Claimant)

File Number(s): 2019/00388435

Publication restriction: No

JUDGMENT

1. The plaintiff is an Owners Corporation in a strata scheme. The relevant building, which is situated in the Sydney suburb of Kingsford, has 12 stories. There are 42 residential lots (units) and two commercial lots.

2. The defendant is the registered owner of Lot (or Unit) 42 in the building. Unit 42 is the penthouse. It is a two-bedroom apartment effectively sitting on the roof of the property.

3. In these proceedings the plaintiff is suing for unpaid levies owed by the defendant. The defendant has not paid his levies since 2018. Including an interest component the outstanding levies now total $123,293.99.

4. The defendant does not deny the plaintiff’s claim, but he says he has a cross-claim which has a value well exceeding the plaintiff’s claim. The cross-claim arises from long standing water penetration since 2011, through the common property, into the defendant’s unit. The outside walls and windows of the unit are accepted to be common property. The defendant says the plaintiff has been in breach of its statutory obligation to maintain and repair the common property, and that the plaintiff has also been negligent and guilty of nuisance. These failings have resulted in the defendant suffering extensive damages, totalling over $2m.

5. The hearing of this matter commenced on 8 December 2025. It had an estimate of five days. At the commencement of the hearing the defendant applied for an adjournment because he was unwell, and his new lawyers (including counsel) had not had a sufficient opportunity to prepare for the hearing.

6. I did not allow the adjournment but did allow some time for preparation. I directed the matter to resume on 11 December 2025. It was however, possible for the oral evidence of an expert (Mr Brincat) to be taken on 8 December 2025.

7. The matter then resumed on 11 December 2025, and continued through that day, the following day, and on 15 December 2025. At the commencement of the hearing on 16 December 2025 I said this to the parties:

“Can I just ask - this is addressed to both sides - have you considered the effect of schedule 4 of the Civil and Administrative Tribunal Act, which is a jurisdiction clause which talks about, in effect - and it goes both ways - if you've got something in the tribunal the Court doesn't have jurisdiction, and other way around, if there's something in the Court - NCAT doesn't have jurisdiction - provided there's a similarity of issues. It just struck me with all of these proceedings and NCAT applications, whether there's any duplication, which might cause a bit of a problem because jurisdiction is something submissions or consent can't get over.”

8. The hearing then continued with the parties undertaking to consider the jurisdiction issue that I had raised. On 17 December 2025, both parties informed me that they had come to the conclusion that the jurisdiction issue was ‘real’ and that the Supreme Court did not have jurisdiction to continue to hear the matter. The plaintiff qualified its approach to the extent that it was only the cross-claim (and not the plaintiff’s claim) in respect of which the Supreme Court did not have jurisdiction.

9. I allowed the 20 minutes or so required for the completion of the cross-examination of the defendant to occur before dealing with the jurisdiction issue.

10. The jurisdiction point arises from cl 5 of sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW), which is in the following terms:

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

(b) (Repealed)

(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.

11. It is important to note that by subcl (3), the relevant date is when the application was made to NCAT. It is necessary to recite some of the important dates.

12. The plaintiff’s claim was commenced in the Local Court on 10 December 2019 as a recovery action for unpaid strata levies. A defence was filed on 14 January 2020, stating:

“3. In the alternative, the Defendant has a complete set off against the sum claimed by the Plaintiff.

Particulars

3.1 The Defendant is about to commence in the District Court of NSW a Common Law Negligence claim against the Plaintiff for all the economic and medical damages he has suffered by reason of the Plaintiff's (continuing) negligence to prevent and rectify the water penetration issue to common property that has made the Defendant's Lot unliveable since 2012.

3.2 Those proceedings will be for a substantial sum of money in excess of the sum claimed by the Plaintiff.

3.3 The Plaintiff has been on notice of this negligence claim since 2018, and certainly no later than 14 June 2019.“

13. It was acknowledged by the defendant that the set-off that had been pleaded in the defence would not have taken effect until the filing of the envisaged proceedings in the District Court.

14. The first NCAT proceedings were filed on 20 September 2013, and were followed by various proceedings in the Tribunal some of which were resolved by agreement or decided by the Tribunal. Importantly, for the jurisdiction issue, fresh proceedings were commenced in NCAT on 24 April 2020. The first two annexures to the application set out the issues and breadth of the defendant’s claim in these NCAT proceedings.

15. The Local Court matter was transferred to the Supreme Court on 29 June 2020, because the scope of the proposed cross-claim far exceeded the jurisdiction of both the Local Court and the District Court.

16. On 30 June 2020, the defendant filed the cross-claim in this Court. Because of the commencement of the NCAT proceedings on 24 April 2020, the filing of the cross-claim should have alerted the parties to the jurisdiction issue, which they have both now accepted, and conceded.

17. Both parties had legal representation and any allocation of blame, if that were appropriate, would be shared equally between the parties.

18. In accepting that the Supreme Court lacked jurisdiction, the respective parties put the basis for their position in slightly different ways, although ultimately reflecting the same result. The plaintiff identified six areas of duplication between the 2020 NCAT proceedings and the cross-claim. They are:

19. The extent and cause of ongoing water penetration into the defendant’s penthouse property since 2011.

20. The effect of water penetration on the penthouse and whether or not the penthouse was habitable.

21. The appropriate means to rectify the water issues.

22. Whether the plaintiff had complied with its statutory obligations to maintain and repair common property under the Strata Schemes Management Act 1996 (NSW) or the Strata Schemes Management Act 2015 (NSW) as applicable at the relevant time (the relevant sections being ss 62 and 106 respectively).

23. Whether the plaintiff had acted sufficiently promptly and with sufficient care and skill in investigating the water issues in the penthouse and an adjacent pump room.

24. What had been achieved by the work done by Unicorn Building in carrying out remedial works in 2017 and 2018.

25. The defendant took a different approach, by referring to the record of the proceedings as the means of identifying the overlapping issues. The plaintiff’s approach was also said to arise from the record, so that I do not think there is any real difference between the parties’ respective paths for reaching their conclusions as to jurisdiction.

“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few."

27. As affirmed by Allsop P in Champerslife Pty Ltd v Manojlovski & Anor [2010] 75 NSWLR 245; [2010] NSWCA 33, reasonableness is an important element in whether or not the estoppel should arise, as is the importance of taking a “broad, merits-based” approach; the President, at [3], quoting from Johnson v Gore Wood & Co [2002] 2 AC 1 at [31].

28. The jurisdiction problem should have been considered by the defendant’s legal representatives in April 2020, or at least when they filed the cross-claim in June 2020, but I do not think it can be said that they acted unreasonably in raising the cross-claim in defence to the already existing plaintiff’s claim. Also, looking at the matter broadly, the plaintiff’s failure to recognise the jurisdiction point might also be taken into account.

29. Overall, I do not think that the defendant should be estopped from transferring the cross-claim to NCAT.

30. I am also against the plaintiff on the separation of the levies’ claim from the cross-claim. I appreciate that there is no defence, other than the set off arising from the cross-claim to the levies’ claim, but even if partially successful, the cross-claim could well exceed, and therefore effectively extinguish, the levies’ claim.

31. I therefore think that the whole of the proceedings should be transferred to NCAT. The plaintiff raised the point that the 2019 proceedings were currently before an appeal panel at NCAT and it might not be appropriate to join these proceedings to the appeal proceedings, in particular bearing in mind that the appeal panel had heard submissions and had reserved its decision.

32. I think the best approach is for me to transfer the matter to NCAT and leave it to NCAT to either assign the matter as a fresh proceeding or join it to any existing proceeding.

33. Turning to the costs of the proceedings in the Supreme Court, including the hearing so far, my initial thought was that each party should pay its own costs of the proceedings because both parties were responsible for, in effect, missing the jurisdiction point.

34. I was urged, by both sides, not to take the approach just expressed but rather to leave costs within the transferred proceedings, ultimately to be decided by NCAT. Because this was the common request of the parties I will adhere to their wishes.

35. I make the following order and notation:

36. Proceedings 2019/00388435 are transferred pursuant to cl 6 of sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) to the New South Wales Civil and Administrative Tribunal.

37. Noted that the costs of the whole of the proceedings form part of the transfer to the above Tribunal.

**********