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Line your ducks up before heading to the pond

Posted by Marcus McCarthy | 30 September 2014 | Construction & Infrastructure

The recent NSW Civil and Administrative Tribunal decision in The Owners – Strata Plan 69743 v TRT Constructions Pty Ltd and John & Simon Constructions Pty Ltd [2014] NSWCATCD 119 (‘J&S Constructions’) illustrates the need to be diligent before commencing and proceeding with a matter, irrespective of the jurisdiction.

The Owners Corp commenced proceedings in October 2009 in the CTTT (now NCAT), claiming defects of around $300,000.00 (just estimated at the time). By April 2013, through lack of progress between the parties, the Respondent sought a strike out of the application, this was granted by the Tribunal, but subsequently overturned by the District Court.

Come 2014, the Applicant had finalised their expert report and alleged defects valuing them at around $800,000.00. The Tribunal has a jurisdictional limit of $500,000.00 so the matter was transferred to the Supreme Court of NSW. The Tribunal noted that this entire process could have been avoided if the Applicant had correctly articulated their claim and quantum in the first instance.

Ultimately the matter is now (5 years later) in the Supreme Court, and the matter is only just commencing. The Applicant has been ordered to pay the costs of the Respondent on an ordinary basis thrown away by the transfer, plus the costs of the costs application the basis of this decision.  This is despite the matter still being before the courts and the claim ongoing.Ducks2

This case highlights the impact of not firstly considering the quantum of the claim and the alleged damage – including obtaining appropriate evidence around the same, whilst also putting an onus on the parties (the Applicant in particular) to progress matters diligently. This onus exists even if the parties are attempting to negotiate a resolution. The Tribunal has a direction to push matters towards determination, and now makes orders for the parties to do the same. It is critical that parties consider the potential need for legal representation, and the potential consequences in not progressing the matter expeditiously.

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This publication is © Nexus Lawyers Pty Ltd and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.

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