Lesley-Swan v Owners SP 32735
[2013] NSWSC 1635
•07 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Lesley-Swan v Owners SP 32735 [2013] NSWSC 1635 Hearing dates: 7 November 2013 Decision date: 07 November 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The plaintiff's amended summons be dismissed.
(2) The defendant's notice of motion dated 1 November 2013 be dismissed.
(3) The plaintiff is to pay 75% of the defendant's costs of the proceedings.
Catchwords: JUDICIAL REVIEW - appeal from Local Court - evidence of plaintiff rejected -whether Magistrate erred in failing to expressly address plaintiff's honesty as a witness - adequacy of reasons - whether error of law established by failure to make a finding of fact - whether Magistrate applied the wrong test - whether Court has power to make primary findings of fact on a Local Court appeal where an error of law demonstrated. Legislation Cited: - Local Court Act 2007
- Strata Schemes Management Act 1996
- Supreme Court Act 1970Cases Cited: - Alchin v Daley [2009] NSWCA 418
- Douglass v R [2012] HCA 34; 86 ALJR 1086
- Ken Wolf Real Estate Pty Ltd v O'Halloran [2012] NSWSC 993
- Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
- McCarthy v NRMA Insurance Ltd [2002] NSWSC 1011
- Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673
- Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
- The Owners - Strata Plan 32735 v Heather Lesley-Swan [2012] NSWSC 383
- The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270
- Palmer v Clarke (1989) 19 NSWLR 158
- Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131
- Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230
- Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43Category: Principal judgment Parties: Heather Lesley-Swan (Plaintiff)
The Owners – Strata Plan No 32735 (Defendant)Representation: Counsel:
M.W. Young SC (Plaintiff)
H. Woods (Defendant)
Solicitors:
Dixon Holmes Du Pont (Plaintiff)
Jane Crittenden (Defendant)
File Number(s): 2013/119328
EX TEMPORE Judgment
This as an appeal from a judgment of the Local Court dismissing a claim by the plaintiff, Ms Lesley-Swan. Ms Lesley-Swan had sued the owners of Strata Plan 32735 (the "Strata Plan"). The Strata Plan is the proprietor of the common property of some units in Challis Avenue, Potts Point. At the relevant time Ms Lesley-Swan owned one of those units (the "Unit"). She sued the Strata Plan for, inter alia, lost rent for a period, she said, during which her Unit was not fit to be leased due to damage occasioned to some tiles on the balcony which was part of the common property.
An appeal to this Court from the Local Court is governed by ss 39 to 41 of the Local Court Act 2007 which relevantly provide:
"39 Appeals as of right
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.
...
40 Appeals requiring leave
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
...
41 Determination of appeals
(1) The Supreme Court may determine an appeal made under section 39 (1) or 40:
(a) by varying the terms of the judgment or order, or
(b) by setting aside the judgment or order, or
(c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or
(d) by dismissing the appeal."
There was no application for leave to appeal on a question of mixed fact and law pursuant to s 40(1). Accordingly, the scope and subject matter of this appeal is restricted to questions of law.
During the appeal there was some debate about the scope of the Court's powers in the event that I was satisfied that the Local Court erroneously decided a matter of law that affected its judgment. I will return to address this. Before I do so, and before considering the grounds of appeal, it is necessary to briefly outline the background to the proceedings.
Background
In July 2006, Ms Lesley-Swan purchased the Unit. The Unit was on the ground floor. The Unit was tenanted from 18 September 2006 to September 2007. In December 2006, the tenant advised Ms Lesley-Swan that the balcony tiles had "popped [and] lifted".
On 2 July 2007, Ms Lesley-Swan applied to the Sydney of City Council for development approval in respect of some internal alterations to the Unit. The development approval was granted.
On 4 September 2007, the tenant of the Unit moved out just prior to the end of their tenancy. It appears that a relative of Ms Lesley-Swan occupied the Unit for a short period in December 2007.
In January 2008, renovations were commenced on the Unit.
The Local Court judgment appealed from records that between 21 November 2007 and 4 September 2008 there was correspondence between Ms Lesley-Swan and the Strata Plan on a number of occasions about the Strata Plan's alleged failure to have the balcony repaired. The judgment records that there were proceedings in the Consumer, Trader and Tenancy Tribunal (the "CTTT") between the parties about that issue. In any event on 4, 5 and 6 September 2008, Ms Lesley-Swan's contractor re-tiled the whole of the balcony with new tiles.
It is only necessary to next note that in April 2010 Ms Lesley-Swan commenced proceedings against the Strata Plan in the Local Court. She sought damages. She pleaded a cause of action for breach of statutory duty, namely the duty imposed by s 62 of the Strata Schemes Management Act 1996 ("SSMA"). In her statement of claim Ms Lesley-Swan pleaded that the Strata Plan failed to properly maintain and repair the floor of the balcony, causing it to buckle, crack and lift. She claimed damages for the costs of repairing the tiles in September 2008 and lost rent for the period 4 September 2007 to 14 January 2008, being the period from when the tenant moved out to when the building works commenced.
On 30 May 2011, the Local Court upheld Ms Lesley-Swan's claim (the "first Local Court judgment"). A verdict of $39,997.18 was entered in her favour. This amount reflected an acceptance of both heads of damage claimed by Ms Lesley-Swan.
The Strata Plan appealed the first Local Court judgment in this Court. On 10 August 2012, Hall J upheld their appeal (The Owners - Strata Plan 32735 v Heather Lesley-Swan [2012] NSWSC 383). His Honour found that, in the first Local Court judgment, the Presiding Magistrate had erred in law in awarding Ms Lesley-Swan an amount for the cost of re-tiling the balcony on the basis that, as it was common property, no such amount was recoverable ([191] to [198]). His Honour also found the Presiding Magistrate had failed to provide proper reasons for so much of the first Local Court judgment as upheld Ms Lesley-Swan's claim for lost rent ([199] to [221]).
Justice Hall set aside the first Local Court judgment and the orders made as a consequence. His Honour remitted the matter on the basis that judgment would be entered in favour of the Strata Plan for so much of the claim as concerned the costs of re-tiling, and there be a further hearing in respect of Ms Lesley-Swan's claim for lost rental income.
The further hearing was conducted on 15 February 2013. Leaving aside one matter, the hearing was undertaken by the parties tendering the evidence that was adduced in the previous hearing in the Local Court including the transcript. The one matter of exception concerned the evidence of an expert whom Hall J had found that the Presiding Magistrate at the previous hearing should have rejected. At the second hearing, the objectionable aspects of this evidence were addressed by a further affidavit which was read. The expert's evidence was admitted and the expert was briefly cross examined.
On 20 March 2013, the Presiding Magistrate published his judgment (the "second Local Court judgment"). His Honour made orders dismissing the balance of Ms Lesley-Swan's claim, being the claim for lost rent. At some point, his Honour ordered Ms Lesley-Swan to pay the Strata Plan's costs. I will outline the substance of the second Local Court judgment later when addressing grounds 1 and 2 of the appeal.
As noted, Ms Lesley-Swan now appeals the second Local Court judgment alleging various errors of law on the part of the Presiding Magistrate. Further, it was submitted on her behalf that if errors of law are established that justify the setting aside of the second Local Court judgment, then this Court should proceed to determine all remaining issues in the proceeding including by making findings of primary fact.
The Strata plan denied that any alleged errors of law had been established. Further, at the hearing of the appeal it sought leave to file a notice of contention. The notice of contention sought to assert that, even if there were errors in the second Local Court judgment, the result should nevertheless be upheld on the basis that subsequent to the decision the Court of Appeal had found that a breach of s 62 of the SSMA does not give rise to a private right to damages (see The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270). Ms Lesley-Swan opposed the Strata Plan being granted leave to file the notice of contention out of time.
I will deal with the alleged errors of law on the part of his Honour first.
Grounds 1 and 2: Alleged failure to address credibility of Ms Lesley-Swan or give reasons for rejecting her evidence
Ground 1 of Ms Lesley-Swan's appeal alleges that in the second Local Court judgment the Presiding Magistrate erred in law in failing to address the "credibility" of Ms Lesley-Swan's evidence concerning the degree of damage to the tiles, her ability to tenant the Unit in light of that damage, and whether she would have sought to tenant the Unit had the damage to the tiles not occurred. Ground 2 is an alternative to ground 1. It contends that, if his Honour did reject Ms Lesley-Swan's evidence on these topics, his Honour failed to provide any reasons or at least adequate reasons for doing so.
In view of these contentions it is necessary to set out the relevant part of Ms Lesley-Swan's evidence and aspects of the second Local Court judgment in some detail.
In an affidavit that was read in the proceedings Ms Lesley-Swan stated as follows in relation to the state of the tiles:
"9. Before the tenant left, I went and inspected the Unit and observed that about 2 square metres of the approx 20 square metres of tiles on the balcony had completely lifted and broken up, and many other tiles were cracked and broken. About 80% of the remaining tiled area on the balcony produced a drum-like hollow sound when walked over. At the edges of the broken up area the tiles sat approximately 100mm above the concrete slab. Annexed hereto and marked G are photographs I took at the time showing the state of the tiles."
Ms Lesley-Swan also stated as follows in relation to her intentions regarding the re-letting of the Unit:
"10. At the end of the lease the tenant of the Unit departed on 4 September 2007. After the departure of the tenant, I wanted to enter into a short term lease of the Unit so that I could earn income from it pending the renovations I planned to carry out in the course of 2008. That was not possible given the state of the balcony. It was broken up, unsightly and unsafe. I thus decided to ensure that the balcony was repaired urgently."
In the second Local Court judgment, his Honour recounted the background to the proceedings, the agreed facts and described the nature of the duty owed under s 62 of the SSMA. His Honour then recounted the issues for determination in the proceedings as follows:
"The parties were essentially in agreement as to the issues for determination. They were:
1. What was the state of the plaintiff's balcony as at September 2007?
2. Was the balcony in such a damaged condition that the plaintiff could not re-let the unit on a short term lease from 5 September 2007?
3. Did the plaintiff have an intention to re-let the unit in September 2007?"
His Honour then set out a heading, namely "The evidence concerning the state of the balcony as at September 2007". His Honour then set out a summary of the affidavit evidence from Ms Lesley-Swan on that topic which included a summary of paragraph 9 of her affidavit which I have extracted above (at [21]). His Honour then noted the following about her cross examination:
"In cross examination the plaintiff accepted that one of the photographs she had annexed to her affidavit had not in fact been taken prior to 4 September 2007 but was in fact taken after the renovation work had commenced in January 2008. One of the other photographs in the annexures appears to have similar discolouration shown on the tiles to that shown in the photograph that was taken after the renovation work had commenced. All of the photos in annexure G [to her affidavit] appear to show tiles that had not just buckled but appear to have been broken up into many pieces, and some appear to have been moved from the position where they had originally been laid."
His Honour then noted a report that Ms Lesley-Swan had obtained from some building surveyors concerning an inspection of the property undertaken on 13 February 2008. After summarising the contents of the report his Honour noted:
"This description of the state of the tiles as at February 2008 does not on the face of it accord with what is depicted in the photos in the plaintiff's annexure G. The area referred to also suggested that it was located centrally in the span of the balcony. I noted above that the photos in the plaintiff's annexure G appear to show tiles that had broken up into pieces rather than tiles that 'buckled upwards', as referred to in building report."
His Honour then summarised the evidence from a witness called by the Strata Plan concerning the state of the tiles, Ms Henderson. Ms Henderson had owned and occupied a unit above Ms Lesley-Swan's Unit from around 18 December 2007. According to his Honour, Ms Henderson gave a description of the state of the tiles that was inconsistent with that given by Ms Lesley-Swan. In response, it had been pointed out, on Ms Lesley-Swan's behalf, that Ms Henderson had only a limited view of the tiles from her balcony. His Honour noted the following concerning that controversy:
"I accept that the evidence that Ms Henderson would have only been able to see the outer edge of the plaintiff's balcony. I note, however, that one of the coloured photographs which forms part of the plaintiff's annexure G shows what appears to be the outer edger of the balcony area. That is the photo which shows a metal railing. If the tiles were in the condition shown in that photograph Ms Henderson would have been in a position to see them in December 2007, despite the limited view available to her, in my opinion."
Thus his Honour regarded Ms Henderson's evidence as directly inconsistent with that of Ms Lesley-Swan concerning the state of at least some of the tiles.
The next part of his Honour's judgment is entitled "Evidence concerning the plaintiff's intention to let the unit from 4 September 2007 on a short term basis". Immediately under this heading, his Honour set out the entirety of paragraph 10 of Ms Lesley-Swan's affidavit which I have set out above (at [22]). His Honour then observed:
"One issue that I need to consider is whether or not the conduct of the plaintiff in 2007 was consistent with the plaintiff's intention as stated in her affidavit of 12 August 2010. That requires a consideration of a number of documents that are in evidence."
His Honour then reviewed the evidence concerning Ms Lesley-Swan's approach to letting the Unit. The evidence reviewed concerned the period prior to September 2007 and afterwards. I return to address this in dealing with ground 4.
Next his Honour reviewed the evidence of the real estate agents called by the parties. It is not necessary to describe that in any detail.
The next section of the second Local Court judgment was entitled "Findings and decision". In relation to the state of the tiles his Honour considered that the concession of Ms Lesley-Swan that one of the photos annexed to her affidavit was not taken until after the renovations commenced meant that there was a "real uncertainty as to whether the remaining photographs in [annexure G to her affidavit] were taken prior to [or] sometime after January 2008".
Next, his Honour noted that the photos in annexure G were inconsistent with the report prepared on behalf of Ms Lesley-Swan. His Honour then noted the photo in annexure G showed an area of the balcony that would have been visible by Ms Henderson but she did not observe the tiles in a damaged state.
His Honour next noted that there was an absence of any evidence of a complaint from the tenant who occupied the Unit prior to 4 September 2007 that they could not enjoy the full use of the Unit due to the state of the tiles. His Honour considered that this absence "support[ed] a finding that the damage to the balcony was not as extensive as shown in the photographs".
His Honour found that the evidence of Ms Henderson and these other matters led to him being unable to accept that the photographs in annexure G to Ms Lesley-Swan's affidavit showed the true condition of the tiles as at September 2007. His Honour concluded:
"The evidence adduced by the plaintiff does not allow me to properly assess the impact of the damaged tiles on her ability to re-let the property on a short-term basis, as I am simply unable to determine the extent of the damage. It follows that I am not able to say that the unit was in a condition that it could not be re-let if that was the plaintiff's intention as at 4 September 2007."
In relation to the intention to re-let the Unit his Honour referred to his earlier review of the correspondence both before and after September 2007. His Honour also referred to certain evidence given by Ms Lesley-Swan in re-examination as being "vague and uncertain and ... inconsistent with the correspondence generated by the plaintiff which I refer to above". Ultimately, his Honour found:
"When I have regard to the content of the correspondence which I referred to above, the failure of a plaintiff in her correspondence at any time prior to 1 March 2010 to express an intention to re-let her unit on a short-term tenancy from 4 September 2007, the vague evidence given in re examination about her approach to a real estate agent, I do not accept the plaintiff had an intention to re-let the property on a short term tenancy as at 4 September 2007." (emphasis added)
In the end result his Honour summarised the relevant findings as follows:
"It follows that I am uncertain as to the extent of the damage to the tiles as at 4 September 2007, and the impact that damage had on the plaintiff's ability to lease the property as at that date. It also follows that I find that the plaintiff had no intention to re-let the property as at 4 September 2007 on a short term basis. Those two findings mean that the plaintiff must fail in her claim for loss of rent."
I add that each of those findings meant that Ms Lesley-Swan's claim had to fail.
In support of these grounds of appeal, senior counsel for Mr Lesley-Swan, Mr M. Young SC, submitted that it was a logically and necessary anterior step for his Honour to properly consider Ms Lesley-Swan's credit as a witness before proceeding to reject part of that evidence, particularly her evidence on matters that would have been well known to her, such as her intentions as in September 2007 and the state of damage of the tiles she observed at the time.
He further submitted that if it was found, contrary to his primary submission, that the Presiding Magistrate had impliedly made adverse credit findings against Ms Lesley-Swan when rejecting her evidence on the extent of the damage and as to her intentions to lease the Unit then it meant that there was a failure on the part of his Honour to properly give reasons for those findings.
In relation to this latter point it was not disputed that, if there was a failure on the part of the Presiding Magistrate to give adequate reasons, that would amount to an error of law capable of being agitated on an appeal under s 39(1) of the Local Court Act. For present purposes the relevant principles were addressed in Hall J's judgment noted earlier. At [223(iv)] his Honour cited a passage from Alchin v Daley [2009] NSWCA 418 to the effect that where credit issues are involved it is necessary to explain why one witness is preferred to another. Consequently bald findings on credit where substantial factual issues have to be addressed may not comply with the duty to give reasons that is imposed on a judicial officer (see also Palmer v Clarke (1989) 19 NSWLR 158 at 170).
However, the primary contention of Mr Young SC does not raise a matter concerning the adequacy of the Court's reasons. The Court is not obliged to set out reasons for a finding it did not make. Instead if the Court's reasons do not record a finding that it was obliged to make then the obvious implication is that it failed to make it and that its function miscarried for that reason (see in the context of an administrative decision Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55]).
I have described his Honour's reasoning in some detail. His Honour rejected Ms Lesley-Swan's evidence as to the state of the tiles because his Honour considered it was undermined by her concession that a photograph that she said depicted the state of the tiles as at September 2007 was not taken until after the renovations commenced, that the remainder of the photographs were inconsistent with a report that had been tendered on her behalf and was inconsistent with the evidence of Ms Henderson.
In terms of the standard expressed in Alchin v Daley extracted above, his Honour preferred Ms Henderson's evidence over that of Ms Lesley-Swan because his Honour considered that the latter suffered from the difficulty that she asserted a photo was taken in 2007 and then conceded it was taken later and that her evidence was, according to his Honour, inconsistent with a report that had been tendered on her behalf.
In relation to her evidence about her intention to tenant the Unit, his Honour considered that that evidence was inconsistent with her actions before September 2007 and was further undermined by her failure to mention that that had been her intention in correspondence generated after September 2007. I return to consider this matter in relation to ground 4. I should note my conclusion on that ground does not undermine this aspect of his Honour's reasoning so far as it goes.
Subject to considering Mr Young SC's primary point, in my view this was a perfectly permissible approach to weighing up competing evidence. In my view to the extent that his Honour was confronted with a choice between evidence that his Honour regarded as pointing in different directions, his Honour sufficiently explained his reasons for rejecting Ms Lesley-Swan's evidence and preferring the other material.
However, Mr Young SC's fundamental complaint is, as I have stated, that his Honour was obliged to assess Ms Lesley-Swan's "credit" which in context appears to be a reference to her honesty as a witness. It is to be recalled that questions as to the weight to be attached to a witness' evidence involve both questions of honesty and reliability (see Douglass v R [2012] HCA 34; 86 ALJR 1086 at [15]). In most, if not many cases, a judicial officer confronted with competing evidence is not obliged to make an express finding about a person's honesty as a witness. Often it will either be unfair or at least unnecessary to do so. Instead it is sufficient if the resolution of the competing testimony is undertaken by considering any objective material which may indicate which is the most reliable version. That is the approach that his Honour adopted in this case.
In oral submissions, Mr Young SC contended that this was a category of case in which it was obligatory for his Honour to determine Ms Lesley-Swan's credibility by which he meant her honesty as a witness. He submitted that Ms Lesley-Swan's evidence was crucial to her case and that the outcome was tantamount to a finding that she had been dishonest in her evidence.
Mr Young SC referred to a decision of Master Malpass in McCarthy v NRMA Insurance Ltd [2002] NSWSC 1011 where it was found that a magistrate in that case was required to expressly address the credibility of the plaintiff (at [21]). In McCarthy, the plaintiff was accused of fraud. In such a case one can understand how it can be incumbent upon the Court to expressly address the credibility in terms of honesty of the plaintiff both as a witness and in respect of their conduct that is at issue in the proceedings.
However, this was not a case of fraud. Instead this was a case about the state of certain tiles at a particular point in time well into the past and about the intention a person held, again at a time well into the past. In terms of resolving the issues that confronted his Honour, I do not consider it was obligatory to address the honesty of Ms Lesley-Swan as a witness even if her role was crucial to her case as Mr Young SC submitted.
Thus to the extent that ground 1 rests upon a contention that his Honour was obliged to expressly address Ms Lesley-Swan's honesty as a witness, I reject that contention.
To the extend that ground 1 is premised upon a contention that his Honour was obliged to address Ms Lesley-Swan's credibility as a witness in terms of her reliability, in my view his Honour did so.
In relation to ground 2, I consider that his Honour set out his reasons for rejecting Ms Lesley-Swan's evidence and preferring other evidence in a manner that was sufficiently in conformity with the relevant obligation imposed upon his Honour.
It follows that I reject grounds 1 and 2.
Ground 3: His Honour erred in concluding there was no evidence to enable the extent of the tile damage to be assessed
Ground 3 takes issue with his Honour's finding as concerns the state of the tiles as at September 2007. At the risk of repetition, for present purposes his Honour's finding was encapsulated by the following statement:
"It follows that I am uncertain as to the extent of the damag[e] to the tiles as at 4 September 2007, and the impact that damage had for the plaintiff's ability to lease the property as at that date."
Mr Young SC contends that in so finding his Honour overlooked other evidence concerning the state of the tiles. He pointed to a number of items of evidence which appeared to date from 2008 as material that was capable of informing an assessment by his Honour as to the state of the tiles as at September 2007. Although most of that material did date from 2008 Mr Young SC pointed out that it at least pre-dated April 2008 which was a time that Ms Henderson had nominated as the point when she observed the tiles being smashed by work men.
Ultimately, Mr Young SC submitted:
"The question of whether there is any evidence of a particular fact is a question of law: see McPhee v S Bennett Limited (1934) 52 WN (NSW) 8 at 9, Australian Broadcasting Tribunal v Bond (1990), 170 CLR 321 at 355. Thus the Magistrate's erroneous finding that there was no evidence upon which a finding of the state of tiles could be made was an error of law."
The first sentence from the submission is undoubtedly correct. However, the ground fails because his Honour did not make a finding of fact in respect of which it could sensibly be said that there was no evidence. Instead, his Honour declined to make a crucial finding of fact that Ms Lesley-Swan had urged upon him.
It is fundamental to bear in mind that the task of making findings of fact was exclusively vested in the Local Court. Leaving aside jurisdictional facts of which this was not one, an error of law will not be demonstrated by the failure of the Local Court to make a finding of fact in favour of a party even if the reviewing Court considers that the evidence in support of that fact was strong or indeed overwhelming.
In any event, I note that in this case his Honour was careful to express his finding as to a lack of satisfaction about the contended for fact as at 4 September 2007. Most of the material referred to by Mr Young SC dated from after the commencement of the renovations so that under those circumstances it was conceivably open to his Honour to not give that material much weight as to the state of the tiles as at 4 September 2007. Most, if not all, of the material concerning the state of the tiles as at September 2007 came from Ms Lesley-Swan and that was evidence in respect of which his Honour afforded little or no weight.
The difficulty with ground 3 is that it does not raise any error of law but only a question of fact. Accordingly, I must reject ground 3.
Ground 4: Plaintiff's intention to let the Unit
It is appropriate to set out ground 4 in full. It asserts:
"The Magistrate erred in law in relation to the test to be applied with respect to the reletting of the Plaintiff's unit. The Magistrate misdirected himself on this question by finding at [64], [65], [66] and [68] of his reasons that the relevant test was whether the Plaintiff had an intention as at 4 September 2007 to relet her unit, when the true test was whether the Plaintiff would have sought to relet her unit for any period after 4 September 2007 if the damage to the tiles had been remedied by the Defendant."
To address this, it is necessary to return to the judgment of Hall J. At [200] his Honour identified that at least one of the factual disputes that had to be resolved was "whether the respondent had an intention in September 2007 to short-term lease her unit prior to internal renovations on her unit commencing in January 2008".
The significance of the date "September 2007" in this extract from Hall J's judgment is that his Honour was intending to refer to the time just prior to the point when Ms Lesley-Swan claims to have realised that she could not lease the Unit due to the state of the tiles.
As noted, the Unit was tenanted until 4 September 2007. In her affidavit Ms Lesley-Swan stated that "before her tenant left" she inspected the Unit and took the photographs that became annexure G. In cross examination she stated she took them in September 2007. In her affidavit, she also stated that it was her intention to re-let the premises prior to the renovations but this was not "possible given the state of the balcony".
However, it was not explored with Ms Lesley-Swan when that precise time was. Thus it was quite possible that she formed that view on a day prior to 4 September 2007. If that was so, a determination of what her intention was as at 4 September 2007 was irrelevant to her damages claim because that would reflect upon her intentions after she had formed the view that the Unit could no longer be tenanted because of the state of the tiles.
I have already referred to the relevant findings that his Honour made in relation to Ms Lesley-Swan's intention to re-let the premises. Ultimately, his Honour did not accept "that the plaintiff had an intention to re-let the property on a short- term tenancy as at 4 September 2007". Mr Young SC argued that this finding involved the application of a wrong test. He submitted that:
"The true question, however, was of course not whether the plaintiff has an intention to re-let the premises on a short-term basis as 4 September 2007, but whether the plaintiff would have proceeded from 4 September 2007 to have re-let her premises on a short-term basis had the damage to the tiles on a lower terrace not been present."
In support of that submission Mr Young SC referred to numerous occasions in the second Local Court judgment where his Honour recorded a finding as to Ms Lesley-Swan's contentions to re-let the Unit "as at 4 September 2007". I accept Mr Young SC's contention that those can only be a reference to Ms Lesley-Swan's intention at that date rather than a reference to an intention held by her prior to that date to lease the premises from that date.
I consider that it also follows from that conclusion that these findings do not of themselves address the correct issue on this limb of the case, namely, absent damage to the tiles, would Ms Lesley-Swan have leased the Unit from 4 September 2007 up to the commencement of her renovations? This is so because, as I have explained, it was not established that it was on that date that Ms Lesley-Swan formed the view that the damage to the tiles was such that she could no longer tenant the Unit. To the contrary, she may have already concluded that by 4 September 2007 in which case an intention on her part not to lease the Unit on that date would have not been particularly relevant. Thus, to this extent, his Honour did not ask or answer the correct question. In this limited sense, his Honour erred in law and ground 4 is established.
However, his Honour's failure to ask or answer the correct question on this limb of the case does not warrant the setting aside of the second Local Court judgment. I have also rejected so much of the grounds of appeal that challenges his Honour's rejection of that part of Ms Lesley-Swan's case that asserted the state of the tiles rendered the Unit not fit to be tenanted in September 2007. His Honour's rejection of that contention was, of itself, fatal to Ms Lesley-Swan's case and was not affected by his Honour's failure to ask or answer the correct question as to Ms Lesley-Swan's intentions about the re-letting of the Unit. Thus, it follows that the dismissal of her claim by the Local Court cannot be interfered with.
Fact finding in Local Court appeals
As stated Mr Young SC submitted that, in the event the Court identified an error of law warranting interference with the second Local Court judgment, it should proceed to determine for itself the balance of the outstanding factual issues. He submitted that factors of convenience and costs strongly favour this course especially given the history of this matter to date. In light of the conclusion that I have come to it is not strictly necessary to address this issue but nevertheless, for the sake of completeness, I will.
The fundamental difficulty with Mr Young SC's submission is that, in my view, this Court does not have the power to make findings of primary fact on a Local Court appeal even if an error of law has been established or even if an error of mixed fact and law has been established. This follows from the terms of ss 39 to 41 of the Local Court Act with or without s 75A of the Supreme Court Act 1970.
In a number of decisions the Court of Appeal has held that an appeal to that Court restricted to questions of law does not enable that Court to make findings of fact if legal error is established (see, for example, the cases cited in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [83] to [87]). In Thaina Town, Spigelman CJ, with whom Mason P, Beazley, Giles and Ipp JJ agreed, held that, with the assistance of s 75A, the Court of Appeal could on an appeal on a question of law exercise a discretionary power vested in the body appealed from when no further factual findings were required (at [104]). In so stating the Court in Thaina Town overruled an earlier authority (Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673) which appeared to preclude the exercise of such discretionary powers but nevertheless affirmed the status of the Maurici so far it held that the Court of Appeal was precluded from making findings of fact (Thaina Town at [110]). Maurici was a case in which s 75A was available to be invoked by the Court of Appeal if it was otherwise applicable.
In Ken Wolf Real Estate Pty Ltd v O'Halloran [2012] NSWSC 993, at [51] to [52], I noted the effect of more recent authority, including the judgment of French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 on this topic. It suffices to state that, at first instance, I am still bound by Thaina Town to hold that the Court is precluded from making primary findings of fact on an appeal restricted to questions of law notwithstanding the terms of s 75A.
Mr Young SC submitted that these cases should be restricted as being applicable only to specialist tribunals such as the Land and Environment Court or the Dust Diseases Tribunal. He referred to the passage of Giles JA in Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131 at [59] cited in Thaina Town at [106]. He contended that, by way of contrast, the Local Court is a court of general jurisdiction so that the degree of deference on factual matters that should be afforded to specialist courts and tribunals is not warranted in an appeal from the Local Court.
I do not accept that this a relevant point of distinction. Ultimately, these matters turn upon a proper construction of the provisions specifying the subject matter and scope of the right of appeal and not upon the identity or assumed expertise of the body that is appealed from. In effect, the restriction of an appeal to a question of law reflects a legislative choice to vest the exclusive power to make findings of fact within jurisdiction in the body appealed from.
Notice of contention
For the sake of completeness, I will address the application of the Strata Plan to rely upon a notice of contention outside the time provided for in the Uniform Civil Procedure Rules 2005 ("UCPR") rule 50.11. I addressed the operation of notices of contention in the context of an appeal from the Local Court on a question of a law in Ken Wolf at [53]. I will refuse leave to the Strata Plan to rely upon its notice of contention at this point, notwithstanding that it only seeks to agitate a matter of law. To allow it on this appeal to raise reliance on the decision in Thoo would appear to me to be fundamentally inconsistent with the manner in which it conducted the proceedings to date. If the point sought to be agitated, namely that s 62 of the SSMA does not confer a right of action for damages, had been raised earlier, it might have warranted an application on behalf of Ms Lesley-Swan to amend her statement of claim to raise a different cause of action. In these circumstances I refuse leave (see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645.7 to 646).
Disposition
It follows from these reasons that the appeal will be dismissed. The Strata Plan's notice of motion seeking leave to file a notice of contention will also be dismissed.
According I order that:
(1) The plaintiff's amended summons be dismissed.
(2) The defendant's notice of motion dated 1 November 2013 be dismissed.
[The parties addressed on costs.]
In seeking to resist an application for his client to pay the Strata Plan's costs, Mr Young SC has pointed to a number of matters. First, he has noted that his client has successfully resisted the notice of motion seeking to file a notice of contention at the time. That occupied some part of the hearing. Secondly, he has pointed to one aspect of the matter that his client has succeeded on, namely, the establishment of ground 4 although that did not ultimately lead to success.
In my view, the best course is to make some percentage reduction in the costs otherwise payable to the Strata Plan to reflect the success, albeit limited, of the plaintiff bearing in mind that she was ultimately unsuccessful. Accordingly, I order the plaintiff to pay 75% of the defendant's costs of the proceedings.
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Decision last updated: 18 November 2013
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