Owners - Strata Plan 35612 v Irwin and Tebb - [2003] NSWSC 1192

CITATION: Owners - Strata Plan 35612 v Irwin & Tebb [2003] NSWSC 1192

HEARING DATE(S): 11 December 2003

JUDGMENT DATE:
16 December 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeals are dismissed; (2) The summonses filed 20 June 2003 are dismissed; (3) The decision of Magistrate Price dated 23 May 2003 is affirmed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed in both matters.

CATCHWORDS: Appeal - Small Claims Division of Local Court - damage to electrical appliances - power surge

LEGISLATION CITED: Local Court (Civil Claims) Act 1970 - s 69
Strata Scheme Management Act 1966

CASES CITED: Kojima v Australian Chinese Newspapers [2000] NSWSC 1153

PARTIES :

The Owners Corporation of Strata Plan 35612
(Plaintiff)
Phebe Irwin
(Plaintiff - 11562/03)
Andrew Tebb
(Plaintiff - 11527/03)

FILE NUMBER(S): SC 11526/2003; 11527/2003

COUNSEL:
Mr E Assaf
(Plaintiff)
Mr P Bahlmann
(Defendant - 11526/03)
Mr McCrudden
(Defendant - 11527/03)

SOLICITORS:
McCulloch & Buggy
(Plaintiff)
Bahlmann Burke Lawyers
(Defendant - 11526/03)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 954/2002
1049/2002

LOWER COURT
JUDICIAL OFFICER : Magistrate Michael Price

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 16 DECEMBER 2003

11526/2003 - THE OWNERS CORPORATION OF STRATA
PLAN 35612 v PHEBE IRWIN
11527/2003 - THE OWNERS CORPORATION OF STRATA
PLAN 35612 v ANDREW TEBB
JUDGMENT (Appeal – Small Claims Division

of Local Court – damage to electrical
appliances – power surge)

1 MASTER: By summonses filed 20 June 2003, the plaintiff in both matters seeks firstly, to appeal the decision of Local Court Magistrate Michael Price dated 23 May 2003 in Local Court proceedings numbered 954/2002 and 1049/2002 pursuant to s 69 of the Local Court (Civil Claims) Act 1970 (the Act); and secondly, an order that verdict and judgment be entered in its favour. This matter was referred to a Master for hearing by the List Judge.

2 The plaintiff appeals the whole of the decision of Price LCM on the grounds that they were denied natural justice because firstly, the order cannot be supported having regard to the evidence; secondly, the Magistrate failed to give each party the opportunity to adequately present its case; thirdly, the Magistrate failed to observe the procedural and other rules provided for in the relevant statute; and fourthly, the Magistrate failed to come to his decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice.

3 The matter arises out of a claim for $10,000.00 by each defendant, tenants at the plaintiff’s premises at 72 Market Street, Wollongong, for damages to their electrical appliances caused by a power surge that occurred at the premises on 9 February 2002. The issues were firstly, whether the defendant had delegated its duty of care to the strata manager; secondly, whether the plaintiff had been negligent and/or in breach of its duty to maintain the premises under s 62 of the Strata Scheme Management Act 1966; thirdly,…

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: [2003] NSWSC 1192
Decision Date: 16 December 2003

CaseChat Overview and Summary

The appeal was brought by the Owners of Strata Plan 35612 against Irwin and Tebb. The dispute arose after an electrical power surge caused damage to a number of electrical appliances owned by the appellants. The matter was initially heard in the Small Claims Division of the Local Court, where the appellants sought damages for the loss of their appliances. The respondents argued that they were not responsible for the damage, and that the loss was due to an external event outside of their control.

The primary legal issue before the court was whether the respondents were liable for the damage to the appellants' appliances. The court needed to determine whether the respondents breached their duty of care to prevent such damage from occurring. The respondents contended that they had taken all reasonable steps to prevent power surges, including the installation of surge protectors. The appellants argued that the respondents' installation of surge protectors was inadequate and that they were still liable for the damage caused by the power surge.

The court found that the respondents were not liable for the damage to the appellants' appliances. The court held that the respondents had taken all reasonable steps to prevent power surges, including the installation of surge protectors. The court found that the damage was caused by an external event, namely the power surge, which was not within the control of the respondents. The court held that the respondents had not breached their duty of care and were therefore not liable for the damage caused by the power surge. The appeal was dismissed.

No orders were made by the court as the appeal was dismissed. The appellants were not awarded any damages for the loss of their appliances. The court found that the respondents had not acted negligently and were therefore not liable for the damage caused by the power surge. The respondents were not required to pay any compensation to the appellants.

Orders