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Lesley-Swan v Owners SP 32735

Lesley-Swan v Owners SP 32735

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Case Copied 7 November 2013 30 min read

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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 1970
Cases 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 43
Category: Principal judgment
Parties: Heather Lesley-Swan (Plaintiff)
The Owners â€“ 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…

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: [2013] NSWSC 1635
Decision Date: 07 November 2013

CaseChat Overview and Summary

In Lesley-Swan v Owners SP 32735, the plaintiff sought judicial review of a decision made by a Local Court Magistrate. The plaintiff had appealed against an earlier decision by the Local Court, which had dismissed their claim for damages. The plaintiff alleged that the Magistrate had failed to properly consider their credibility as a witness and had not sufficiently addressed the evidence presented. The Court of Appeal was tasked with determining whether the Local Court Magistrate had erred in their assessment of the plaintiff's evidence and whether the reasons provided were adequate.

The primary legal issues before the court were whether the Magistrate had erred by not expressly addressing the plaintiff's honesty as a witness, and whether the Magistrate had applied the correct legal test in evaluating the evidence. Additionally, the court had to determine if the failure to make a finding of fact constituted an error of law, and whether the Court of Appeal had the power to make primary findings of fact on appeal when an error of law was demonstrated.

In examining the appeal, the Court of Appeal found that the Magistrate had indeed failed to expressly address the plaintiff's honesty as a witness, which was a critical aspect of the evidence presented. The court also held that the Magistrate's reasons were inadequate, as they did not sufficiently address the key issues in the case. The court determined that the failure to make a finding of fact constituted an error of law. However, the Court of Appeal clarified that while it has the power to make primary findings of fact on appeal when an error of law is demonstrated, it should do so sparingly and only when necessary to resolve the appeal.

Ultimately, the Court of Appeal allowed the appeal, quashed the decision of the Local Court, and remitted the matter back to the Local Court for reconsideration. The court emphasised the importance of properly addressing the credibility of a witness and ensuring that the reasons provided are comprehensive and address all relevant issues in the case.

Orders