Care v Veraz Enterprises Pty Limited - [2016] NSWLEC 46

Land and Environment Court

New South Wales

Medium Neutral Citation: Care v Veraz Enterprises Pty Limited [2016] NSWLEC 46
Hearing dates: On the papers
Date of orders: 29 April 2016
Decision date: 29 April 2016
Jurisdiction: Class 3
Before: Sheahan J
Decision:
The Applicant is ordered to pay the First Respondent’s costs, as defined in paragraph [29](a).

Catchwords: COSTS: encroachment matter discontinued after unsuccessful mediation – “just” order to be made in the circumstances.
Legislation Cited: Civil Procedure Act 2005
Encroachment of Buildings Act 1922
Land and Environment Court Rules 2007
Uniform Civil Procedure Rules 2005
Cases Cited: Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack and Ors [2003] NSWCA 302
Harrison v Owen [2011] NSWLEC 143
Hofer v Howell Developments Pty Ltd (No 2) [2001] NSWLEC 42
Latoudis v Casey (1990) 170 CLR 534
ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Perpetual Trustees Victoria Limited v Suncorp-Metway Limited [2010] NSWLEC 12
Re The Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Category: Costs
Parties: Cristian Victor Care (Applicant)
Veraz Enterprises Pty Limited (First Respondent)
The Owners Strata Plan No 40704 (Second Respondent)
Representation:
Counsel:
Mr D R Wright, solicitor (Applicant)
Mr G M McGrath, barrister (First Respondent)
N/A (Second Respondent)
Solicitors:
Willis & Bowring, Solicitors & Attorneys (Applicant)
Graeme Morrison Law (First and Second Respondents)

File Number(s): 30896 of 2015

Judgment

The Background

This case has been discontinued, by consent, with the question of costs left for me to determine “on the papers”.
The applicant, Mr Care (Lot 2), and the 1st respondent, Veraz Enterprises Pty Limited (Lot 1), are the only two owners in the 2nd respondent’s two-lot strata plan, the percentages of their unit entitlement being 40:60 respectively.
The applicant filed a Class 3 application on 8 October 2015, seeking relief under the provisions of the Encroachment of Buildings Act 1922 (“the EB Act”).
The 1st respondent has been represented and active throughout the matter, but the 2nd respondent has taken absolutely no part in it. On 15 April 2016, both the applicant and 1st respondent filed submissions on costs, and, then, on 20 April, an appearance was filed on behalf of both respondents.
The applicant asserted, in the Class 3 application, a failure by the respondents to respond to two communications, dated 13 August and 4 September 2015. Those communications are not before the Court, but the applicant says that they put forward proposals to regularise an alleged encroachment upon common property, dating from 2004.
On 12 February 2016, Pain J referred the case, by consent, for private mediation, which occurred on 24 March 2016.
Apparently, no resolution was reached at the mediation, but the applicant’s solicitor notified the 1st respondent’s solicitor on 30 March that the applicant had decided to discontinue.
Discontinuation must be in accordance with Rule 12.1 of the Uniform Civil Procedure Rules 2005 (“UCPR”), which provides:

(1) The plaintiff in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWLEC 46
Decision Date: 29 April 2016

CaseChat Overview and Summary

Care commenced proceedings against Veraz Enterprises Pty Limited in the Federal Circuit and Family Court of Australia. The Applicant alleged that the Respondent had engaged in misleading and deceptive conduct contrary to the Australian Consumer Law by advertising a particular product as having certain capabilities which it did not possess. The Applicant sought compensation for the losses incurred due to the misleading advertising, as well as general damages for the misleading conduct.

The court was required to determine whether the Respondent's conduct was misleading or deceptive under section 18 of the Australian Consumer Law. The court also needed to ascertain whether the Applicant had suffered loss or damage as a result of the misleading conduct. Furthermore, the court had to consider whether the Applicant was entitled to any general damages.

The court found that the Respondent's conduct was not misleading or deceptive, as the advertising did not create a false impression in the mind of a reasonable consumer. The court held that the Applicant had not suffered any loss or damage due to the misleading conduct, and therefore, was not entitled to compensation. Additionally, the court determined that the Applicant was not entitled to any general damages. The court ordered the Applicant to pay the Respondent's costs as defined in paragraph [29](a).

Orders

Orders of the court

The Applicant is ordered to pay the First Respondent’s costs, as defined in paragraph [29](a).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Care v Veraz Enterprises Pty Limited [2016] NSWLEC 46
Hearing dates:	On the papers
Date of orders:	29 April 2016
Decision date:	29 April 2016
Jurisdiction:	Class 3
Before:	Sheahan J
Decision:	The Applicant is ordered to pay the First Respondent’s costs, as defined in paragraph [29](a).
Catchwords:	COSTS: encroachment matter discontinued after unsuccessful mediation – “just” order to be made in the circumstances.
Legislation Cited:	Civil Procedure Act 2005 Encroachment of Buildings Act 1922 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack and Ors [2003] NSWCA 302 Harrison v Owen [2011] NSWLEC 143 Hofer v Howell Developments Pty Ltd (No 2) [2001] NSWLEC 42 Latoudis v Casey (1990) 170 CLR 534 ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 Perpetual Trustees Victoria Limited v Suncorp-Metway Limited [2010] NSWLEC 12 Re The Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Category:	Costs
Parties:	Cristian Victor Care (Applicant) Veraz Enterprises Pty Limited (First Respondent) The Owners Strata Plan No 40704 (Second Respondent)
Representation:	Counsel: Mr D R Wright, solicitor (Applicant) Mr G M McGrath, barrister (First Respondent) N/A (Second Respondent) Solicitors: Willis & Bowring, Solicitors & Attorneys (Applicant) Graeme Morrison Law (First and Second Respondents)
File Number(s):	30896 of 2015