Baron Corporation Pty Ltd v Owners of Strata Plan 69567 (No 2)

[2013] NSWCA 256

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Baron Corporation Pty Ltd v Owners of Strata Plan 69567 (No 2) [2013] NSWCA 256

Hearing dates:

On the papers

Decision date:

08 August 2013

Before:

McColl JA; Barrett JA; Young AJA

Decision:

No order

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL AND NEW TRIAL - where the Court of Appeal determines an appeal from a decision of a judge of the Equity Division on a question ordered to be determined separately - whether the proceedings in the Equity Division may then be progressed without remitter by the Court of Appeal

Legislation Cited:

Supreme Court Act 1970, s 103

Category:

Consequential orders

Parties:

Baron Corporation Pty Ltd - Appellant
The Owners - Strata Plan No 69567 - Respondent

Representation:

Counsel:
F Corsaro SC - Appellant
I G B Roberts SC/T J Davie - Respondent
Solicitors:
Colin Biggers & Paisley - Appellant
Bannermans Lawyers - Respondent

File Number(s):

2013/156063

 Decision under appeal 

Citation:

Owners - Strata Plan No 69567 v Baseline Constructions Pty Ltd [2013] NSWSC 409

Date of Decision:

2013-04-24 00:00:00

Before:

Stevenson J

File Number(s):

SC2011/63243

Judgment

1. THE COURT: Judgment in this appeal was delivered on 29 July 2013. The following orders were made.

"1. Grant leave to appeal.

2. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days

3. Appeal allowed.

4. Set aside Order 1 made in the Equity Division on 13 June 2013 and order in lieu:

'Order that the question whether

(a) for the purposes of the Home Building Act 1989, the second defendant is a "developer" who did the work, being the construction of the common property in the land the subject of Strata Plan 69567 known as and situated at 37 Morley Avenue Rosebery as contended in paragraph 11A of the Second Further Amended Technology and Construction List Statement; and

(b) the plaintiff, being the owner of the common property, is, pursuant to s 18C of that Act, entitled to the benefit of the statutory warranties implied by s 18B of the Act and may enforce the statutory warranties against the second defendant as if the second defendant had constructed the common property under a contract with the plaintiff

be answered "no".'

5. Set aside Order 3 made in the Equity Division on 13 June 2013 and order in lieu:

'Order that the costs of the hearing of the separate question on 15 and 16 April 2013 otherwise be the second defendant's costs in the cause.'

6. That the respondent pay the costs of the applicant/appellant in this Court.

1. A question has arisen as to the power of a judge of the Equity Division to make a final determination of the proceedings without remitter by the Court of Appeal to the Equity Division.

1. For the reasons that follow, no order remitting the proceedings is required.

1. The appeal was from the decision of the primary judge on a question ordered to be determined separately. The first sentence of the judgment below is:

"This is the determination of questions that, on 23 November 2012, the Court ordered to be heard separately from and prior to all other questions."

1. At [3], the primary judge set out the questions for separate determination (Question (a) and Question (b)), as follows:

"The separate questions are:

(a) whether the Owners Corporation is entitled to the benefit of such statutory warranties against Baron; and

(b) whether Baron owed the Owners Corporation the duty of care contended for."

1. At [4], the primary judge said:

"The Owners Corporation does not press its contention that Baron owed it a duty of care. That aspect of its claim must be dismissed at an appropriate time."

1. His Honour then said at [5]:

"The issue for me to determine is the Owners Corporation's entitlement to the statutory warranties for which it contends."

1. The primary judge proceeded to consider Question (a) and answered it in the affirmative.

1. The appeal to this Court was brought under s 103 of the Supreme Court Act 1970:

"An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the Court of any question or issue ordered to be decided separately from any other question or issue.

1. The appellant applied for leave to appeal as envisaged by this provision. The application for leave and the appeal itself were heard concurrently. The result in this Court was as set out at [1] above. Thus, leave to appeal was granted, the appeal was allowed and this Court substituted a negative answer to Question (a).

1. Given the terms of s 103, the appeal was confined to the primary judge's "decision" on Question (a). The correctness or otherwise of that "decision" was the only substantive matter before this Court, although the consequential question of the costs of the determination of the separate question also arose as part of the appeal. Having determined the appeal from the judge's "decision" on Question (a), this Court had completed the s 103 function.

1. At that point, the position became the same as if the primary judge had answered Question (a) in the way this Court ultimately answered it. The proceedings in the Equity Division continued on foot with Question (a) having been answered in the negative.

**********

Decision last updated: 08 August 2013