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Posted 21 June 2018
Category: Strata, NCAT and Court Proceedings
A recent High Court case, Burns v Corbett  HCA 15, has cast doubt on the scope of the jurisdiction of the NSW Civil and Administrative Tribunal (“NCAT”) and other tribunals to hear disputes between residents of different states. This is potentially a significant problem for strata schemes, especially those near a state border.
The problem identified in the case is that the Constitution and associated Commonwealth legislation:
This is known as the “diversity jurisdiction”. It reflects concerns at the time the constitution was being negotiated about residents of a given state being subject to unfair treatment in court proceedings in another State. The response was to allow State courts to hear these matters, but exercising federal jurisdiction, which effects applicable law and appeal rights.
Neither the Constitution nor the case define terms such as “matters”, “between” or “residents”, but a string of High Court cases from the 20s and 30s indicate that:
Given the likelihood, in a strata context, that one of the parties will be an owners corporation or a strata managing agent, building manager, developer, builder, contractor, insurer or supplier which is a company, these exceptions may well largely destroy the rule. However, it needs to be considered carefully before commencing NCAT proceedings, to minimise the risk of lost cases and adverse costs orders.
We have considerable experience with these issues and can assist you if you are having difficulties in your strata scheme.
For further information please consider this article: Crane Airspace Licences
We have considerable experience with these issues and can assist if you are having difficulties with them.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.