Manbead Pty Ltd v The Owners - Strata Plan - [2017] NSWSC 1629

Supreme Court

New South Wales

Medium Neutral Citation: Manbead Pty Ltd v The Owners – Strata Plan; No 87635 [2017] NSWSC 1629
Hearing dates: 5 April 2017
Decision date: 28 November 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application for leave to appeal dismissed

Catchwords:
APPEALS – application for leave to appeal against decision of NCAT Appeal Panel on a question of law – no error of law established
BUILDING CLAIMS – claims by Owners Corporation and individual lot owners in respect of common property – whether Appeal Panel erred in assuming separate claims were maintainable – whether Appeal Panel erred in declining to consider Scott Schedule prepared after consent orders were entered for purpose of determining whether claim exceeded Tribunal’s jurisdictional limit
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW),
s 83(1), Sch 4 cl 8
Home Building Act 1989 (NSW), s 48K(1)
Cases Cited: Honeywood v Munnings [2006] NSWCA 215
Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22
The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272
The Owners – Strata Plan No 43551 v Walter Construction Group Limited [2004] NSWCA 429
Vero Insurance Ltd v Owners of Strata Plan No 69352 [2011] NSWCA 138
Category: Principal judgment
Parties: Manbead Pty Ltd (plaintiff)
The Owners – Strata Plan No 87635 (first defendant)
Gino D’Amico (second defendant)
Representation:
Counsel:
MJ Dawson (plaintiff)
I George (defendant)
Solicitors:
Maguire and McInerney Lawyers (plaintiff)
Lawson Plowes Lawyers (defendant)

File Number(s): 2016/253671
Publication restriction: None

Judgment

HER HONOUR: This is an application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil & Administrative Tribunal (NCAT). The application is brought pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW), which confers a right of appeal to this Court, with the leave of the Court, on a question of law. The decision in respect of which leave is sought is the refusal of an application to extend the time to appeal against orders entered by the Tribunal by consent.

Circumstances in which the application is brought

Before turning to the Appeal Panel’s decision, it is necessary to explain some of the history of the proceedings in the Tribunal.
The proceedings concerned a building development involving the construction of six townhouses in Woonona. On 14 January 2015, the Owners Corporation lodged a claim in the Tribunal alleging defects in the construction of the townhouses. The following day, the Tribunal contacted the Owners Corporation to advise that each lot owner within the Strata Plan had to lodge an individual claim (Joint Court Book, page 60). The basis for that advice is unclear; there was nothing in the original application lodged by the Owners Corporation to suggest that was necessary. In any event, five lot owners subsequently lodged individual claims in addition to the claim by the Owners Corporation. In the result, six claims were lodged with NCAT, each claiming the sum of $25,000.
The respondents to the claims…

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] NSWSC 1629
Decision Date: 28 November 2017

CaseChat Overview and Summary

The case involved an appeal by Manbead Pty Ltd against a decision of the NCAT Appeal Panel. The dispute was between Manbead, a developer, and the Owners Corporation and individual lot owners of a strata property. The Owners Corporation and individual lot owners had made claims against Manbead regarding the common property. The appeal centred on whether the NCAT Appeal Panel had erred in its legal reasoning and decision-making process. Specifically, the issues were whether the Appeal Panel had wrongly assumed that separate claims were maintainable and whether it had erred in declining to consider a Scott Schedule prepared after consent orders were entered to determine if the claims exceeded the Tribunal’s jurisdictional limit.

The court examined the NCAT Appeal Panel's reasoning and concluded that no error of law had been established. The court found that the Appeal Panel had not erred in assuming that separate claims were maintainable, as the claims were properly categorised and distinct in nature. Additionally, the court held that the Appeal Panel did not err in declining to consider the Scott Schedule prepared after the consent orders, as it was irrelevant to the issue of whether the claims exceeded the Tribunal’s jurisdictional limit. The court determined that the Appeal Panel's decision was well-reasoned and supported by the evidence.

Given the findings, the court dismissed the appeal. No error of law was identified in the Appeal Panel’s decision, and the assumptions made by the Panel were deemed reasonable. Consequently, the court upheld the NCAT Appeal Panel's decision, and Manbead's application for leave to appeal was rejected.

Orders