Chan v Acres (No 2) - [2016] NSWSC 557

Supreme Court

New South Wales

Medium Neutral Citation: Chan v Acres (No 2) [2016] NSWSC 557
Hearing dates: On the papers
Date of orders: 06 May 2016
Decision date: 06 May 2016
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Two paragraphs of earlier reasons withdrawn and corrected. Parties to submit draft orders to give effect to these and (as corrected) earlier reasons.

Catchwords: PROCEDURE – application for correction to earlier reasons pursuant to UCPR r 36.17 – rule does not apply – discretion by the Court to withdraw reasons for the purpose of correction – correction of earlier reasons
Legislation Cited: Uniform Civil Procedure Rules 2005
Category: Procedural and other rulings
Parties: Rebecca Chan (First Plaintiff)
Warren Cox (Second Plaintiff)
Robert Acres (First Defendant)
Alpha Building Services Pty Ltd (Second Defendant)
Mitchell Howes Civil & Structural Engineers Pty Ltd (Third Defendant)
Ku-ring-gai Council (Fourth Defendant)
Representation:
Counsel:
M Walsh (Plaintiffs)
R R Acres (First Defendant) (In person)
P J Bambagiotti (Fourth Defendant)
Solicitors:
Snelgroves (Plaintiffs)
R R Acres (First Defendant) (In person)
Mills Oakley (Fourth Defendant)

File Number(s): 2012/48496

Judgment

HIS HONOUR: The plaintiffs own a residence at Wahroonga. It is severely affected by defective building work. The plaintiffs sued the defendants seeking to cover the costs of rectification. On 11 December 2015, following a 12 day hearing between 29 September and 15 October 2015, I published reasons for judgment ([2015] NSWSC 1885) holding that the plaintiffs were entitled to recover, from the second and fourth defendants only, some but not all of the damages they sought.
I directed the parties to seek to agree on the orders to be made following delivery of my reasons. The parties could not agree. Instead, they raised further issues for my decision.
Before I describe those further issues, I set out [1] to [10] of my earlier reasons, to give some content to what follows:

1 HIS HONOUR: The plaintiffs (Ms Chan and Mr Cox) own a house situated at Roland Avenue, Wahroonga. They bought it from the first defendant (Mr Acres) and his then wife in March 2010. Mr Acres’ former wife played no part in these proceedings. No one took the point that she should have been, but was not, a party. I shall refer to activities in fact undertaken by Mr Acres and his then wife as though he alone had undertaken them.
2 Mr Acres, as an owner-builder, carried out significant renovations and extensions to the house in 2008 and 2009. He had obtained a development consent issued by the fourth defendant (the Council) on 22 April 2008, and a construction certificate issued by the Council on 6 May 2008. He engaged the Council as Principal Certifying Authority (PCA) for the purposes of Part 4A of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) and Part 8 of the Environmental Planning and Assessment Regulation 2000 (NSW) (the EPA Regulation).
3 Mr Acres engaged what he called an architect, but…

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.

Continue reading Chan v Acres (No 2)

Details

AGLC: Chan v Acres (No 2) [2016] NSWSC 557
Case: [2016] NSWSC 557
Decision Date: 06 May 2016

CaseChat Overview and Summary

The case of Chan v Acres (No 2) involved a dispute between the parties in relation to the correction of earlier reasons given by the court. The matter was before the court for an application to correct those reasons, pursuant to rule 36.17 of the Uniform Civil Procedure Rules. The legal issues before the court centred on whether the rule applied and if not, whether the court had the discretion to withdraw the earlier reasons to make the necessary corrections.

The court held that the rule did not apply in this context and therefore the application for correction under the rule was unsuccessful. However, the court found that it had the inherent jurisdiction to withdraw the earlier reasons for the purpose of making corrections. The court exercised its discretion to withdraw the earlier reasons and provide corrected reasons, ensuring that the parties had a clear understanding of the court's decision.

The court's reasoning was based on the principle that the court has an inherent jurisdiction to ensure the accuracy and fairness of its judgments. The court considered it necessary to correct the earlier reasons to avoid any potential miscarriage of justice or confusion for the parties involved. The outcome of the case was that the earlier reasons were withdrawn and corrected, providing clarity and ensuring the integrity of the court's decision-making process.

No further orders were made beyond the correction of the earlier reasons.

Orders