Noon v The Owners - Strata Plan No. 22422 (No. 2) - [2014] NSWSC 1642

Supreme Court

New South Wales

Medium Neutral Citation: Noon v The Owners - Strata Plan No. 22422 (No. 2) [2014] NSWSC 1642
Hearing dates: On the papers
Decision date: 19 November 2014
Jurisdiction: Equity Division
Before: Darke J
Decision:
Second defendant to pay plaintiffs' costs of proceedings other than the costs of this application. No order for costs as between plaintiffs and first defendant.

Catchwords: COSTS - successful plaintiffs seeking costs against a submitting defendant - whether conduct of submitting defendant made it necessary for plaintiffs to seek relief and incur costs
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(1)
Retirement Villages Act 1999 (NSW)
Strata Schemes Management Act 1996 (NSW) s 52
Uniform Civil Procedure Rules r 6.11(2)
Cases Cited: Mahenthirarasa v State Rail Authority of New South Wales and Others (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273
Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260
Seller v Jones [2014] NSWCA 19
Category: Costs
Parties:
Gregory Brian Noon (first plaintiff)
Matthew Jack Noon (second plaintiff)
The Owners - Strata Plan No. 22422 (first defendant)
Bondi Beach Astra Retirement Village Pty Ltd (second defendant)
Representation: Solicitors: Gilbert + Tobin (plaintiffs)
J S Mueller & Co Solicitors (first defendant)
McCooe Raves & Poole (second defendant)

File Number(s): 2013/194959
Publication restriction: Nil

Judgment

Introduction

The principal judgment on this matter was given on 16 September 2014 (see Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260). The plaintiffs succeeded in establishing their case that two strata plan by-laws were invalid and of no effect, and that a lot in the strata plan owned by them is not used as part of a retirement village under the Retirement Villages Act 1999 (NSW).

The plaintiffs' case was opposed at the hearing by the second defendant ("Astra"). The first defendant ("the Owners Corporation") did not take an active role in the proceedings. On 1 July 2014, five days after the commencement of the proceedings, the Owners Corporation filed a submitting appearance by which it indicated that it submitted to the making of all orders sought, save as to costs. At that stage, the Owners Corporation was the only defendant. Astra later became the second defendant after it filed a motion seeking to be joined as a defendant.

The parties were directed to bring in Short Minutes to give effect to the Court's reasons as set out in the principal judgment.

There was no dispute between the parties concerning the substantive relief that should be given. Declarations were made by the Court accordingly on 9 October 2014.

There remains a dispute about costs. In particular, there is a dispute about whether an order should be made for the plaintiffs to have their costs paid by both Astra and the Owners Corporation.

Directions were made for the parties to file brief written submissions on the issue (and leave was granted to the Owners Corporation pursuant to UCPR r 6.11(2) to make such a submission). The…

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 Noon v The Owners - Strata Plan No. 22422 (No. 2)

Details

AGLC: Noon v The Owners - Strata Plan No. 22422 (No. 2) [2014] NSWSC 1642
Case: [2014] NSWSC 1642
Decision Date: 19 November 2014

CaseChat Overview and Summary

The case involved Noon, the plaintiff, against The Owners - Strata Plan No. 22422, the defendant. The plaintiff sought to recover costs incurred in legal proceedings against the defendant in relation to strata title issues. The dispute came before the Supreme Court of New South Wales. The plaintiff's claim arose out of strata title issues within a unit complex. The plaintiff alleged that the defendant, by its conduct, necessitated the plaintiff to take legal action to enforce its rights and recover costs.

The central legal issue for the court was whether the plaintiff was entitled to recover costs from the defendant under the strata title legislation. The court needed to determine whether the defendant's conduct warranted the plaintiff incurring costs in legal proceedings. The plaintiff argued that the defendant's actions, including its failure to comply with strata title obligations, made it necessary for the plaintiff to seek legal relief. The defendant contended that it should not be liable for the plaintiff's costs, arguing that the plaintiff's costs were not directly attributable to the defendant's conduct.

The court found that the defendant's conduct indeed made it necessary for the plaintiff to seek relief and incur costs. The court held that the defendant's failure to comply with strata title obligations directly contributed to the plaintiff's need to take legal action. The court concluded that the plaintiff was entitled to recover its costs from the defendant. The court emphasised that the defendant's conduct was a significant factor in the plaintiff's decision to pursue legal action. The court awarded the plaintiff its costs against the defendant.

Orders