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Posted 28 February 2023
Category: Strata, NCAT and Court Proceedings
The Owners – Strata Plan No 93227 v In Style Developments Pty Ltd [2023] NSWCATCD
The recent decision in The Owners – Strata Plan No 93227 v In Style Developments Pty Ltd [2023] NSWCATCD provides insight in relation to the interplay of works orders, money orders and the transfer of proceedings to a Court.
Under section 48O of the Home Building Act 1989 (HB Act), the Tribunal can make one or more of the following:
(i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or
(ii) do or perform, or refrain from doing or performing, any specified act, matter or thing.
The applicant (OC) in this matter was seeking a work order rather than a money order.
The respondent in this matter (In Style) made an application for the transfer of proceedings to a Court having regard to the value of the rectification works exceeding $500,000, given that section 48K of the HB Act states:
“(1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations)..”
The OC opposed the transfer and submitted that if a work order was made then no amount was being awarded, and therefore there was no issue with the section 48K(1).
The Tribunal, not being aware of any decisions that specifically dealt with whether or not NCAT had jurisdiction under the HB Act to make a work order exceeding the total value of $500,000, refused the transfer application and gave reasons summarised as follows:
Essentially, this decision cements the fact that the Tribunal can make a work order of unlimited value, irrespective of the value of the work to be performed.
So, should a matter be transferred to a Court if the value of the works is revealed to be over $500,000?
There are many reasons for and against transferring a matter to a Court and each case will depend on its own facts and circumstances. Some matters to be considered are set out below.
Ultimately, it will depend on the circumstances of each case and Bannermans Lawyers have considerable experience providing recommendations and in assisting Owners Corporations make an informed decision.
For legal advice, please contact one of our experienced legal practitioners.
***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.