Butt v The Owners Strata Plan No 71715

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Butt v The Owners – Strata Plan No 71715 [2023] NSWCATCD 60

Hearing dates:

16 May 2023, on the papers

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. The summons to the first respondent issued by the Tribunal on 6 April 2023 at the request of the applicant is set aside.

2. The summons to the second respondent issued by the Tribunal on 6 April 2023 at the request of the applicant is set aside.

3. Costs are reserved.

4. If either respondent seek costs, they should file and serve submissions as to costs within 14 days. Their submissions should identify the relevant costs rule and the reasons why costs should ordered.

5. The applicant may respond within a further 14 days

6. The respondents may reply within a further 7days.

Catchwords:

PRACTICE AND PROCEDURE – application to set aside a summons to produce documents

Cases Cited:

Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476

Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758

Texts Cited:

The Hon J Bryson KC, Continuing Professional Education - The 2004 Judges Series. Practical Litigation in the Supreme Court and the Federal Court.

Category:

Procedural rulings

Parties:

Paul Thomas Butt (Applicant)
The Owners – Strata Plan No 71715 (First Respondent)
John O’Donnell (Second Respondent)

Representation:

Solicitors:

Applicant:
First Respondent: Swaab
Second Respondent: SpeirsRyan

File Number(s):

SC 23/03267

Publication restriction:

NIL

REASONS FOR DECISION

Introduction

1. This is an application by the respondents to set aside summonses issued on 6 April 2023 at the request of the applicant (Mr Butt) to:

1. the first respondent (OC) (OC Summons); and

2. to the second respondent (Mr O’Donnell) (O’Donnell Summons).

2. The content of the Schedule of the OC Summons is as follows:

1. Comittee [sic] and general meeting minutes concerning complaint of noise by or on behalf of the owners of Lot 26 within lot 26 and complaints/investigations relating to the applicant's lot 50 and the applicants use of that lot being the source and/or cause of such noise. (lot 26 noise issue)

2.Documents evidencing communication between the respondents and or their respective agents about the lot 26 noise issue.

3.Documents evidencing or recording noise complaints from other lot owners or occupiers in the respondent scheme building from 1 January 2020 to the date of service of this summons.

4. Documents evidencing correspondence between the respondents and their respective agents and Ausgrid about noise complaints other than the lot 26 noise issue in the strata scheme building.

5. Documents evidencing correspondence between the respondents and their respective agents and any third party other than Ausgrid/Acoustic Logic about the lot 26 noise issue and other noise complaints in the strata scheme building.

5.Documents evidencing the first respondent's brief to Acoustic Logic to report…