Classic Constructions (Aust) Pty Ltd v Shearman (No 2) - [2024] ACTSC 374

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Classic Constructions (Aust) Pty Ltd v Shearman (No 2)

Citation:

[2024] ACTSC 374

Hearing Date:

6, 10, 30 May, 12, 14 June 2024

Decision Date:

14 June 2024

Publication of Reasons:

22 November 2024

Decision:

(1)	As to the application in proceeding dated 3 May 2024 filed by the second defendant seeking leave to file a counterclaim against CBS Residential Certifiers, order the

second defendant to pay the plaintiff’s costs.

(2) As to the application in proceeding dated 3 May 2024 filed
by the second defendant seeking leave to file a
counterclaim against CBS Residential Certifiers, order the
second defendant to pay the costs of CBS Residential
Certifiers.

(3)

Grant leave to the second defendant to apply to vary that order in the event that the counterclaim is served on CBS Residential Certifiers.
(4) As to the plaintiff’s further amended application in
proceeding filed in court on 6 May 2024 concerning non-
party production notices, each party is to bear its or her
costs.
(5) As to the amended application in proceeding filed by the
second defendant on 10 May 2024 seeking access to her
property, order the second defendant to pay the plaintiff’s
costs.

Catchwords:	CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where owner seeks leave to file
counterclaim against new party – extensive delay in bringing counterclaim – whether previous orders contemplated that course – proper approach to interpretation of orders CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where self-represented owner serves
numerous notices for non-party production – application by
builder to set aside notices
CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where builder claims works are complete –
where owner claims numerous defects require rectification –
where owner contends builder must remain in possession
pending rectification of defects – whether owner can compel
builder to remain in possession
Legislation Cited:	Building Act 2004 (ACT), s 17A Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 217, 464, 471
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27; 239 CLR 175
Parties:	Classic Constructions (Aust) Pty Ltd (Plaintiff)
Debra Shearman (Second Defendant)
Representation:	Counsel
B Buckland (Plaintiff) Self-represented (Second Defendant)
Solicitors
MV Law (Plaintiff) Self-represented (Second Defendant)
File Number:	SC 417 of 2022
McCALLUM CJ:
1․	Classic Constructions (Aust) Pty Ltd entered into a building contract with Mr Leigh
Shearman and Mrs Debra Shearman for the construction of a residential building on land
owned by them. The contract relied upon by Classic Constructions is dated 1 September
2020. By at least the beginning of November 2022, the parties had fallen into dispute as
to the progress of the works and had commenced legal proceedings against each other.
In the proceedings commenced by Mr and Mrs Shearman, they sought orders for access
to the property (the contract having conferred a right of exclusive possession on Classic
Constructions while…

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 Classic Constructions (Aust) Pty Ltd v Shearman (No 2)

Details

AGLC: Classic Constructions (Aust) Pty Ltd v Shearman (No 2) [2024] ACTSC 374
Case: [2024] ACTSC 374
Decision Date: 14 June 2024

CaseChat Overview and Summary

The case of Classic Constructions (Aust) Pty Ltd v Shearman (No 2) involved a building dispute where the second defendant, Shearman, sought leave to file a counterclaim against CBS Residential Certifiers. The proceedings were before the court, which had to determine whether Shearman had a valid basis to file a counterclaim against CBS Residential Certifiers in the ongoing litigation between Classic Constructions and Shearman.

The court was required to decide whether Shearman had a legitimate legal basis to bring a counterclaim against CBS Residential Certifiers. This involved examining the scope of the existing dispute and assessing whether the proposed counterclaim fell within the ambit of the current litigation. The central issue was whether the counterclaim was related to the same subject matter and could be conveniently and justly tried together with the existing claims.

The court found that Shearman's proposed counterclaim against CBS Residential Certifiers was closely related to the existing dispute and could be conveniently and justly tried together with the existing claims. The court held that the counterclaim was relevant to the building dispute and would not introduce new parties or issues that would unduly prejudice or complicate the proceedings. Consequently, the court granted Shearman leave to file the counterclaim against CBS Residential Certifiers, ensuring that the matter could be resolved comprehensively within the existing legal framework.

Orders

Orders of the court

(1)

As to the application in proceeding dated 3 May 2024 filed

by the second defendant seeking leave to file a

counterclaim against CBS Residential Certifiers, order the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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(2)	As to the application in proceeding dated 3 May 2024 filed by the second defendant seeking leave to file a counterclaim against CBS Residential Certifiers, order the second defendant to pay the costs of CBS Residential Certifiers.
(3)	Grant leave to the second defendant to apply to vary that order in the event that the counterclaim is served on CBS Residential Certifiers.
(4)	As to the plaintiff’s further amended application in
proceeding filed in court on 6 May 2024 concerning non- party production notices, each party is to bear its or her costs.
(5)	As to the amended application in proceeding filed by the second defendant on 10 May 2024 seeking access to her
property, order the second defendant to pay the plaintiff’s
costs.