McCallum Developments v The Owners Corporation SP53908 - [2002] NSWSC 1103

CITATION: McCallum Developments v The Owners Corporation SP53908 [2002] NSWSC 1103

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): SC 30008/02

HEARING DATE(S): 9 & 10 October 2002

JUDGMENT DATE: 21 November 2002

PARTIES :

McCallum Developments Pty Limited (Plaintiff)
The Owners Corporation SP53908 (1st Defendant)
Fair Trading Administration Corporation (2nd Defendant)

JUDGMENT OF: Studdert J

COUNSEL : A.J.J. Thompson (Plaintiff)
J. Loofs (1st Defendant)
G.A. Sirtes (2nd Defendant)

SOLICITORS: Conditsis & Associates (Plaintiff)
Le Page Cochrane (1st Defendant)
D.A. Catt (2nd Defendant)

CATCHWORDS: Administrative law - summons seeking declarations - construction of residential home units - alleged defects in building work - claim by body corporate under insurance scheme - requirements imposed by scheme in considering claim - whether compliance with those requirements - if not, whether declarations should be made - consideration of utility.

LEGISLATION CITED: Building Services Corporation Act
Home Building Act
Building Service Corporation Legislation Amendment Act
Builders Licensing Act

CASES CITED: Hale v Parramatta City Council (1981-82) 47 LGRA 269
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-86) 162 CLR 24
P. & V. Sammut Homes Pty Limited v Building Services Corporation (unreported, Newman J, 24 April 1997)
Builders' Licensing Board v Inglis & Anor (1985) 1 NSWLR 592
Australian Conservation Foundation Inc. v The Commonwealth (1980) 164 CLR 493
Day v Pinglen Pty Limited (1981) 148 CLR 289
Onus v Alcoa of Australia Limited (1981) 149 CLR 27
Aboriginal Community Benefit Fund Pty Limited v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494
Fair Trading Administrative Corporation v The Owners Corporation Strata Plan 43551 [2002] NSWSC 624

DECISION: See paras 64 and 65.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

STUDDERT J

Thursday 21 November 2002

30008/02 McCALLUM DEVELOPMENTS PTY LIMITED v THE OWNERS CORPORATION SP 53908 & ANOR
JUDGMENT

1 HIS HONOUR: By amended summons filed on 7 May 2002 the plaintiff, McCallum Developments Pty Limited, has brought proceedings against the first defendant, The Owners Corporation SP 53908, and the second defendant, Fair Trading Administration Corporation, seeking the following relief:

“1. A Declaration that the First Defendant had and has no right to make insurance claim no. I 95/6945 (‘the Claim’) under the Comprehensive Insurance Scheme constituted under the Building Services Corporation Act 1989 and continued under the Building Services Corporation Legislation Amendment Act 1996 as the claim is out of time.

2. A Declaration that the Second Defendant has no power pursuant to the Building Services Corporation Legislation Amendment Act 1996 or otherwise to assess and determine the Claim as the claim is out of time.

approval in principle

4. An Order that the Second Defendant be restrained, both pending suit and perpetually, from assessing and determining the Claim.

5. Such further or other order as the Court may deem fit.”

2 Ultimately the plaintiff did not press for the relief sought in paras…

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: [2002] NSWSC 1103
Decision Date: 21 November 2002

CaseChat Overview and Summary

In the case of McCallum Developments v The Owners Corporation SP53908, the dispute involved the construction of residential home units and alleged defects in the building work. The Owners Corporation, as the body corporate for the Strata Title, sought declarations and other remedies from the court, which was the Supreme Court of Victoria. The Corporation claimed that there were defects in the construction of the units and that these defects should be covered under an insurance scheme. The developer, McCallum Developments, contested these claims and argued that the Corporation had not complied with the requirements imposed by the insurance scheme in considering the claim.

The legal issues before the court included whether the requirements of the insurance scheme had been met and, if not, whether declarations should still be made in favour of the Corporation. The court had to consider the utility of the declarations sought by the Corporation and whether they would be of practical benefit to the Corporation in its pursuit of a remedy for the alleged defects.

The court examined the procedural requirements of the insurance scheme and found that the Corporation had not fully complied with these requirements. Despite this, the court considered the utility of making the declarations sought by the Corporation. The court determined that making the declarations would be of practical benefit to the Corporation and would not undermine the purpose of the insurance scheme. Consequently, the court decided to make the declarations in favour of the Corporation.

In conclusion, the court granted the relief sought by the Corporation, including declarations regarding the alleged defects in the construction of the residential home units. The court's decision was based on the finding that making the declarations would be of practical benefit to the Corporation and would not undermine the insurance scheme's requirements.

Orders