James v The Owners - Strata Plan No 11478 - [2017] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: James v The Owners – Strata Plan No 11478 [2017] NSWCA 166
Hearing dates: 4 July 2017
Date of orders: 04 July 2017
Decision date: 10 July 2017
Before: McColl JA at [1],
Basten JA at [49]
Decision:
Application for leave to appeal dismissed with costs.

Catchwords:
APPEAL – leave to appeal – litigant in person – allegations of negligence, oppression and fraud on minority concerning conduct and management of strata scheme by Owners Corporation rejected on bases including failure to prove loss/detriment– where applicant sought to refer to expert evidence not used at trial – no evidence why not available at trial – whether leave to appeal should be granted
PRACTICE AND PROCEDURE – procedural fairness – where primary judge refused numerous adjournment applications by litigant in person claiming to be not fit to conduct case – where primary judge afforded litigant in person latitude in conduct of case – whether denial of procedural fairness warranting grant of leave to appeal
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58
Strata Schemes Management Act 1996 (NSW), s 79
Supreme Court Act 1970 (NSW), ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.18
Cases Cited: Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; [2014] HCA 36
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Drew v State of New South Wales [2015] NSWCA 159
Durham v Durham [2011] NSWCA 62
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Squire v Rogers (1979) 39 FLR 106
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Will of Gilbert (1946) 46 SR (NSW) 318
Category: Principal judgment
Parties: Jennifer Elizabeth James (Applicant)
The Owners Strata Plan No. 11478 (First Respondent)
Robert John Anderson (Second Respondent)
Advanced Community Management Pty Ltd (Third Respondent)
Representation:
Counsel:
Self represented (Applicant)
Mr C P O’Neill (First Respondent)
Mr S A Adair (Second and Third Respondents)
Solicitors:
Self represented (Applicant)
Swaab Attorneys (First Respondent)
Sparke Helmore Lawyers (Second and Third Respondents)

File Number(s): 2016/362103
Publication restriction: No
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2016] NSWSC 1558

Date of Decision:

3 November 2016

Before:

Darke J

File Number(s):

2014/37203 and 2014/181511

Judgment

McCOLL JA: The applicant, Jennifer James, seeks…

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: [2017] NSWCA 166
Decision Date: 10 July 2017

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal a decision of the primary judge. The applicant, a litigant in person, alleged negligence, oppression, and fraud against the Owners Corporation – Strata Plan No 11478, concerning the management of the strata scheme. These allegations were rejected by the primary judge, partly due to the applicant's failure to prove loss or detriment.

The key legal issues before the Court of Appeal were whether leave to appeal should be granted, particularly in light of the applicant's attempt to introduce expert evidence not presented at trial, and whether the primary judge's refusal of numerous adjournment applications, made on the grounds of the applicant's alleged unfitness to conduct the case, constituted a denial of procedural fairness warranting leave to appeal.

The Court of Appeal found no error in the primary judge's conduct of the proceedings. It was noted that the primary judge had afforded the litigant in person considerable latitude in the conduct of the case. Furthermore, the applicant failed to provide a satisfactory explanation as to why the expert evidence was not available at the trial. Consequently, the Court concluded that there was no basis to grant leave to appeal.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the Owners Corporation.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

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:	James v The Owners – Strata Plan No 11478 [2017] NSWCA 166
Hearing dates:	4 July 2017
Date of orders:	04 July 2017
Decision date:	10 July 2017
Before:	McColl JA at [1], Basten JA at [49]
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	APPEAL – leave to appeal – litigant in person – allegations of negligence, oppression and fraud on minority concerning conduct and management of strata scheme by Owners Corporation rejected on bases including failure to prove loss/detriment– where applicant sought to refer to expert evidence not used at trial – no evidence why not available at trial – whether leave to appeal should be granted PRACTICE AND PROCEDURE – procedural fairness – where primary judge refused numerous adjournment applications by litigant in person claiming to be not fit to conduct case – where primary judge afforded litigant in person latitude in conduct of case – whether denial of procedural fairness warranting grant of leave to appeal
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-58 Strata Schemes Management Act 1996 (NSW), s 79 Supreme Court Act 1970 (NSW), ss 75A, 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.18
Cases Cited:	Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56 Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; [2014] HCA 36 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Drew v State of New South Wales [2015] NSWCA 159 Durham v Durham [2011] NSWCA 62 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Squire v Rogers (1979) 39 FLR 106 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Will of Gilbert (1946) 46 SR (NSW) 318
Category:	Principal judgment
Parties:	Jennifer Elizabeth James (Applicant) The Owners Strata Plan No. 11478 (First Respondent) Robert John Anderson (Second Respondent) Advanced Community Management Pty Ltd (Third Respondent)
Representation:	Counsel: Self represented (Applicant) Mr C P O’Neill (First Respondent) Mr S A Adair (Second and Third Respondents) Solicitors: Self represented (Applicant) Swaab Attorneys (First Respondent) Sparke Helmore Lawyers (Second and Third Respondents)
File Number(s):	2016/362103
Publication restriction:	No
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: [2016] NSWSC 1558 Date of Decision: 3 November 2016 Before: Darke J File Number(s): 2014/37203 and 2014/181511