The Owners – Strata Plan No 47035 v Athens

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.

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.

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.

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.

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.

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.

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:

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.

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.

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:

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.

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:

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.

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.

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.

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.

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

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:

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.

The question that then arose was what action I should take. The plaintiff submitted that I should proceed with its claim for unpaid levies and dismiss the cross-claim. This submission involved me finding an estoppel arising from the defendant having not included the cross-claim within the April 2020 NCAT application.

Alternatively, the plaintiff submitted that I should ‘keep’ the levies claim and only transfer the cross-claim to NCAT. Part of this submission included staying any judgment on the plaintiff’s claim until the NCAT proceedings were completed.

The defendant submitted that I should transfer the whole of the proceedings (claim and cross-claim) to NCAT.

Both parties accepted that I had the power to make the transfer pursuant to cl 6 of sch 4 to the Civil and Administrative Tribunal Act.

My immediate reaction to the transfer request was to inquire whether or not NCAT would have the jurisdiction to deal with the cross-claim, in particular the causes of action of negligence and nuisance and the extent of the damages claimed, including both as to their limit and those arising from personal injury.

Again, both parties were in agreement, that NCAT did have the necessary jurisdiction. They relied, in particular on the decision of the New South Wales Court of Appeal in Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284. I agree that the judgements in Vickery, in particular as contained in paras 26, 28, 51, 149, 165 and 166, all suggest that s 232 of the Strata Schemes Management Act 2015 would encompass the capacity of the Tribunal to hear and determine the damages claim made by the defendant.

Returning to the options put forward by the plaintiff, I do not think that an estoppel (in particular an ‘Anshun’ estoppel) arises. In Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; [1981] HCA 45, this was said at p 602:

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].

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.

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

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.

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.

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.

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.

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.

I make the following order and notation: