Owners Strata Plan 51673 v Fair Trading Administration Corporation

Owners Strata Plan 51673 sued the Fair Trading Administration Corporation for indemnity under the Building Services Corporation Act 1989. The dispute centred around whether the Owners were entitled to indemnity for losses resulting from undisclosed defects in a strata building, following the completion of the building works. The court was tasked with determining whether the Owners' notification of the defects was sufficient under the statutory insurance scheme and whether the Fair Trading Administration Corporation was liable for the losses incurred. Additionally, the court had to assess the validity of the defence of change of position in reliance on good faith, and whether the onus of proof regarding awareness of the defects lay with the Owners.

The primary legal issues were whether the notification of defects was adequate under the Act and if the Fair Trading Administration Corporation was liable for the losses. The court also needed to decide if the Owners' claim for indemnity was barred by time limitations. Furthermore, the court examined the fairness of the defence of change of position in reliance on good faith and the onus of proof concerning the awareness of the defects. The court was required to determine whether the Owners had discharged the onus of proving that the Fair Trading Administration Corporation was aware of the defects and whether the payments made under a mistaken belief were recoverable.

The court found that the Owners had not provided sufficient notification of the defects as required by the statutory scheme. Consequently, the Owners' claim for indemnity was dismissed. The court held that the Fair Trading Administration Corporation was not liable for the losses due to the inadequacy of the notification. The court also ruled that the defence of change of position in reliance on good faith was not applicable because the onus of proof regarding awareness of the defects lay with the Owners, which they had not discharged. The court concluded that the payments made under a mistaken belief were not recoverable.

The court ordered that the Owners' claim against the Fair Trading Administration Corporation be dismissed with costs. The decision emphasised the importance of adhering to statutory requirements for notification of defects in strata buildings and the consequences of failing to do so. The ruling highlighted the necessity for Owners to provide adequate evidence of defects and the awareness of relevant authorities to successfully claim indemnity under the statutory scheme.