Transfer of Building & Strata Claims between NCAT and Courts

Clients will need to be extremely careful as to where a building and construction claim is commenced.

NCAT (or the Tribunal) has primary jurisdiction in relation to many homebuilding matters.

At times, a client may commence a homebuilding claim in a court and then be ‘pulled’ into NCAT at great cost and expense.

We have had cases where there were multiple proceedings on foot (one in NCAT for example and one in a court, e.g. the Supreme Court).

Careful thought needs to be given as to whether or not a matter needs to be transferred from a court to NCAT or in more limited cases, vice versa. Sometimes respective questions in relation to one matter can stay in two jurisdictions if the court and NCAT have different jurisdictions. A transfer application can also be made when either a court or NCAT has the full jurisdiction to hear all matter related questions.

This is where things can at times end in disaster.

For example, when commencing proceedings, litigants need to be very careful to ensure that there are no claims commenced (by them or the other side) in another jurisdiction and, in the least, that different questions are before those forums with each having a separate and distinct jurisdiction to hear the separate questions before them.

In one case, The Owners – Strata Plan No 47035 v Athens [2025] NSWSC 1588, the parties had previously transferred the matter into the Supreme Court (from the Local Court), and had spent about five years there (since 2020). During the final hearing however, Justice Elkaim noted that the Supreme Court may not have had the requisite jurisdiction, because a similar case, on similar issues, was commenced in NCAT before the Supreme Court matter commenced. Justice Elkaim saw no other choice but to transfer the matter to NCAT.

It is in cases like this, that the enormous cost and time of the matter, costs which have been already spent in one jurisdiction, may all essentially be for nothing.

At Papallo Kouchoo Lawyers, we do our utmost to ensure that we do our detailed ‘due diligence’ before we commence proceedings, ensuring to uphold your rights to the maximum extent of the law.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.

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