Lindeman v Stonehaven Proprietary Limited - [2023] VSC 556

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2022 02412

BETWEEN:

GLENDA WILHELMINA LINDEMAN	Plaintiff
and
STONEHAVEN PROPRIETARY LIMITED (ACN 004 369 591)	Defendant

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JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2023
DATE OF RULING:	19 September 2023
CASE MAY BE CITED AS:	Lindeman v Stonehaven Proprietary Limited
MEDIUM NEUTRAL CITATION:	[2023] VSC 556

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PRACTICE AND PROCEDURE – Application for permanent stay of proceeding – Whether dispute concerns a neighbourhood matter – Whether Company Titles (Home Units) Act 2013 (Vic) applies – Whether dispute is more appropriately dealt with by the Victorian Civil and Administrative Tribunal – Application for permanent stay granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Lindeman
For the Defendant	Mr G Jegatheesan	Terrill & Holmes Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Factual background...................................................................................................................... 2
Procedural background................................................................................................................ 6

Relevant law........................................................................................................................................ 7

Submissions...................................................................................................................................... 10

The so-called ‘trigger’ issue....................................................................................................... 12
Status of the Deed as a service agreement under the CTHUA............................................ 13
Constitutional issue.................................................................................................................... 15
Application of the PLA............................................................................................................... 17
Collateral issues........................................................................................................................... 21

Consideration.................................................................................................................................... 25

Does the dispute come within the CTHUA?........................................................................... 25
Is the Defendant a service company?............................................................................. 25
Is the Deed a service agreement?.................................................................................... 26
Is the dispute a neighbourhood dispute, ie is it about neighbourhood matters?.... 27

Are there issues to be determined that are not neighbourhood matters?.......................... 29
Collateral review................................................................................................................ 29
The ‘trigger’ issue.............................................................................................................. 30
Management or executive decisions............................................................................... 31
Section 84 of the PLA........................................................................................................ 31
The constitutional issue.................................................................................................... 34
The other collateral issues................................................................................................ 34

Applying section 12 of the CTHUA to this case..................................................................... 36

Conclusion......................................................................................................................................... 37

HER HONOUR:

Introduction

This decision concerns an application for a stay of the proceeding by the Defendant, which is the registered proprietor of 692 Orrong Road, Toorak (the Premises), an apartment complex also known as ‘Stonehaven’.

The Plaintiff, who is the registered owner of Unit 7 at the Premises, seeks by way of originating motion dated 24 June 2022 various forms of relief for alleged non-compliance with a deed of agreement between the Defendant and the owners of Unit 1-8 at the Premises. The original dispute relates to the suppression of noise, nuisance and the keeping of animals at the Premises.

The Defendant, by way of affidavit dated 21 September 2022, seeks a stay of the proceeding (Stay Application) on the basis that the matter relates wholly to a neighbourhood dispute pursuant to the Company Titles (Home Units) Act 2013 (CTHUA) and would, therefore, be more appropriately dealt with by the Victorian Civil and Administrative Tribunal (the Tribunal). The Plaintiff resists the Stay Application.

By order made on the Court’s own motion on 19 December 2022 by McDonald J, this proceeding was referred to me for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), as I was an associate justice at the time this hearing first commenced on 19 December 2022. On…

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 Lindeman v Stonehaven Proprietary Limited

Details

AGLC: Lindeman v Stonehaven Proprietary Limited [2023] VSC 556
Case: [2023] VSC 556
Decision Date: 19 September 2023

CaseChat Overview and Summary

In the matter of Lindeman v Stonehaven Proprietary Limited, the dispute involved a claim for damages brought by the plaintiff against the defendant in the County Court of Victoria. The plaintiff, Mr Lindeman, alleged that the defendant, a body corporate, had breached its obligations under a property management agreement, resulting in damages. The defendant, in turn, argued that the dispute was a neighbourhood matter and should be subject to a different legislative framework, namely the Company Titles (Home Units) Act 2013 (Vic). The defendant sought a permanent stay of proceedings, contending that the dispute was better suited for adjudication by the Victorian Civil and Administrative Tribunal (VCAT).

The central legal issue before the court was whether the dispute fell within the scope of the Company Titles (Home Units) Act 2013 (Vic) and, if so, whether the court should exercise its discretion to permanently stay the proceedings in favour of VCAT. The court had to consider whether the nature of the claim was sufficiently connected to the management and administration of a body corporate, as opposed to a dispute purely between neighbours. Additionally, the court needed to determine if the principles of judicial economy and the appropriate forum for resolution mandated a transfer to VCAT.

The court found that the dispute did indeed relate to the management of the body corporate and was thus within the scope of the Company Titles (Home Units) Act 2013 (Vic). Given the nature of the dispute, the court exercised its discretion to permanently stay the proceedings, ruling that VCAT was the more appropriate forum for resolving the matter. The court emphasised that the principles of judicial economy and the efficient allocation of judicial resources supported the transfer of the dispute to VCAT. Consequently, the application for a permanent stay was granted, and the matter was referred to VCAT for further adjudication.

No further orders were made by the court beyond the grant of the permanent stay and the referral of the matter to VCAT. The court's decision underscored the importance of correctly identifying the applicable legislative framework and the appropriate forum for resolving disputes involving body corporates and neighbourhood matters.

Orders