A cautionary tale on jurisdiction
Ensuring your proceedings are brought in the correct court or tribunal is critical - getting it wrong could cost you significant time and money
The Owners – Strata Plan No 47035 v Athens [2025] NSWSC 1588 serves as a stark reminder that even substantial, long-running Supreme Court proceedings can unravel if the question of jurisdiction is not carefully considered from the outset.
The dispute began in 2019 as a Local Court claim for unpaid strata levies. The defendant lot owner foreshadowed a substantial cross-claim alleging that the plaintiff owners corporation had failed to maintain the common property, causing significant loss. In light of the scale of the foreshadowed claim, the proceedings were transferred to the Supreme Court.
Once the proceedings were in the Supreme Court, the lot owner filed a cross-claim seeking damages exceeding $2 million. However, by that stage, he had already commenced proceedings in NCAT raising issues that overlapped with those in the cross-claim. The overlap proved decisive.
On the fifth day of trial in 2025, six years after the proceedings had first been commenced, Elkaim AJ raised clause 5 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW). His Honour explained, in substance, that where proceedings involving similar issues are first commenced in NCAT, the Court does not have jurisdiction, and conversely, where proceedings are first commenced in a court, NCAT lacks jurisdiction, provided there is a similarity of issues.
The parties ultimately accepted that, by operation of clause 5 of Schedule 4, NCAT had exclusive jurisdiction over the matters raised in the cross-claim. Because the NCAT proceedings had been commenced first and involved overlapping issues, the Supreme Court was precluded from determining the cross-claim.
The consequence was extraordinary. On the fifth day of hearing, the Supreme Court transferred the entire proceedings to NCAT.
The case stands as a cautionary tale. Jurisdictional questions are not technical afterthoughts. They can determine the forum, procedure, available remedies, costs exposure and the ultimate trajectory of a dispute. Even a $2 million claim, litigated for years in the Supreme Court, is not immune from the operation of statutory jurisdictional boundaries.
Early and careful consideration of where proceedings should properly be brought is not optional. It is essential.
If you are contemplating or involved in court proceedings and need advice, please email us on enquiries@somervillelegal.com.au or telephone 9923 2321.