Owners Strata Plan No 80453 v Walsh - [2014] NSWSC 729

Supreme Court

New South Wales

Medium Neutral Citation: Owners Strata Plan No 80453 v Walsh [2014] NSWSC 729
Hearing dates: 23/05/2014
Decision date: 23 May 2014
Before: Ball J
Decision:
See paragraph 15 of this judgment

Catchwords: PROCEDURE - civil - UCPR r 12.6 - whether consent or leave required to withdraw admission - whether subsequently filed list response impliedly withdraws admission made in original list response - where plaintiff "on notice"
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163
Category: Procedural and other rulings
Parties: Owners Strata Plan No 80453 (Plaintiff)
David John Walsh (First Defendant)
Milano Investments Pty Ltd (Second Defendant)
Representation: Counsel:
T Lynch SC / FP Hicks (Plaintiff/Respondent)
D Weinberger (Second Defendant/Applicant)
Solicitors:
Sparke Helmore (Plaintiff/Respondent)
JS Mueller & Co (Second Defendant/Applicant)

File Number(s): 2011/374915
Publication restriction: Nil

EX TEMPORE Judgment

In proceedings transferred to this court from the Consumer, Trader and Tenancy Tribunal by order made on 14 November 2011, the plaintiff, The Owners Corporation of Strata Plan No 80453, sues the second defendant and developer of the strata plan, Milano Investments Pty Ltd, for defects in the residential apartment building that comprises the strata plan. The plaintiff also sued the first defendant, Mr Walsh, on the basis that he was the builder in respect of the development. Mr Walsh has not participated in the proceedings and the plaintiff has obtained default judgment against him.

In the original Technology and Construction List Response filed by the second defendant on 20 April 2012, the second defendant made admissions to the effect that it had engaged Mr Walsh to undertake the construction of the residential apartment development comprising the strata plan.

On 22 January 2013, the plaintiff filed an Amended Summons and Amended List Statement. It appears that, in the meantime, the second defendant changed its solicitors and, on 28 February 2013, those new solicitors filed a List Response in response to the Amended List Statement.

The issue before the court is whether that List Response was effective to withdraw an admission made by the second defendant in the original List Response concerning the capacity in which Mr Walsh was engaged.

Two things may be said about the two List Responses. First, the original List Response is not well drafted and appears to have been prepared by someone unfamiliar with the practice in the Technology and Construction List. Second, the second List Response is in a completely different form from the first one.

An issue arose between the parties concerning whether the second defendant was entitled, without leave, to file the List Response in response to the Amended List Statement. The plaintiff's position was that the second defendant required leave to file what its solicitors described in a letter dated 27 March 2013 as a "new fresh document". The solicitors suggested that the plaintiff seek leave to file such a document.

On 3 April 2013, the solicitors for the second defendant responded to…

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: [2014] NSWSC 729
Decision Date: 23 May 2014

CaseChat Overview and Summary

The dispute in Owners Strata Plan No 80453 v Walsh originated in the Supreme Court of New South Wales, where the plaintiff, the Owners Strata Plan, sought to enforce certain rights against the defendant, Mr Walsh. The central issue was whether the plaintiff's admission made in the original list response necessitated either consent or leave to withdraw, and if a subsequently filed list response could imply a withdrawal of that admission. The case hinged on whether the plaintiff's status as "on notice" played a significant role in determining the implications of the admissions made.

The legal issues before the court were whether an admission made in an original list response required consent or leave to be withdrawn and if a subsequent list response could be interpreted as an implied withdrawal of that admission. The court had to consider the procedural rules under the Uniform Civil Procedure Rules, particularly rule 12.6, and the implications of being "on notice" for the plaintiff. These issues were critical in determining the procedural correctness and the impact on the subsequent course of the litigation.

The court examined the procedural context and the requirements under UCPR r 12.6, finding that the plaintiff's original admission in the list response did not necessitate consent or leave to be withdrawn, as it was not a formal pleading. However, the court determined that a subsequently filed list response did not imply a withdrawal of the initial admission unless it was expressly stated or clearly indicated such a withdrawal. The status of the plaintiff being "on notice" was deemed significant in assessing the weight and implications of the admissions made. Ultimately, the court ruled in favour of the plaintiff, affirming that the admission in the original list response did not require leave to be withdrawn, and the subsequent list response did not constitute an implied withdrawal.

The final orders of the court recognised the procedural nuances involved and clarified the implications of admissions made in list responses. The court determined that the plaintiff's admission in the original list response was not subject to the need for leave or consent to withdraw and that the subsequent list response did not implicitly withdraw that admission. This decision provided clarity for parties on the procedural implications of admissions made in list responses and the conditions under which such admissions might be considered withdrawn.

Orders