Robyn Norberry v The Owners - Strata Plan 66047
[2015] NSWSC 861
•15 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: Robyn Norberry v The Owners – Strata Plan 66047 [2015] NSWSC 861 Hearing dates: 15 May 2015 Date of orders: 15 May 2015 Decision date: 15 May 2015 Jurisdiction: Common Law Before: Rothman J Decision: 1. The parties confer in order to degree on a mediator within 14 days by 4pm on 29 May 2015;
2. In the absence of agreement, the matter be referred to the Registrar for mediation in accordance with the Joint Protocol;
3. Subject to an agreement to the contrary each party bears its own costs of the mediation and half the costs of the mediator;
4. The summons is adjourned without further order until 10am on 17 July 2015, at which time, subject to any notification to the Court otherwise, the summons will be heard to finality;
5. Reserve costs of proceedings up and until today, that has not been subject to order;
6. The parties have liberty to apply on 3 working days’ notice.Catchwords: CIVIL – application to transfer proceedings from NSW Civil and Administrative Tribunal and Local to Supreme Court – single justiciable controversy over deficient building works and rectification required – longstanding dispute – order for mediation – if mediation fails, preliminary view that court order for expedited hearing at Supreme Court or Tribunal Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Robyn Norberry (Plaintiff)
The Owners – Strata Plan 66047 (Defendant)Representation: Counsel:
Solicitors:
M. Bradford (Plaintiff)
S. Dixon (Defendant)
File Number(s): 2014/00260173 Publication restriction: None
Judgment
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The Court has before it a summons for transfer of proceedings and/or the commencement of proceedings in this Court that are otherwise before the Local Court and/or are to be before the New South Wales Civil and Administrative Tribunal (hereinafter, “NCAT”).
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The justiciable controversy between the parties, leaving the summons currently before the Court, is longstanding and relates to building works that were completed and are said by the plaintiff to have been deficient to such an extent that the plaintiff is now in dispute with the owners corporation as to the works that are required to rectify it.
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The proceedings that are to be before the NCAT, in its specialist jurisdiction, relate to rectification works that the plaintiff is seeking the owners’ corporation perform. The proceedings in the Local Court relate to the plaintiff’s claim for damages against the Strata Plan. Plainly, both sets of proceedings relate to the one justiciable controversy.
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Courts, and this Court in particular, have long turned their faces against multiplicity of proceedings in order to resolve issues between the parties. Avoidance of multiplicity of proceedings is the underlining reason we have now cross‑vesting legislation that allows the transfer of proceedings.
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The defendant submits, which submission is not without merit, that the specialist jurisdiction conferred upon NCAT should be allowed to run its course and that the matter should be dealt with in the tribunal in a manner that is ordinarily would be more expeditious and less expensive than the same proceedings in this Court.
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Further, the defendant submits that the amount of damages involved is not particularly large and, at least at this stage, is an amount that is within the civil jurisdiction of the Local Court.
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On its face there are two competing difficulties. The first difficulty is the avoidance of multiplicity of proceedings. Parties ought not be forced to undergo a series of proceedings to resolve what is, in effect, a single set of rights arising out of one justiciable controversy. On the other hand, the matter seems quite clearly to be one that could be dealt with by NCAT, at least insofar as the issues of rectification are concerned.
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The justiciable controversy is agitated by the plaintiff in circumstances where she has serious concerns that, at least in part, are reasonable and, at least in part, are accepted by the defendant. On the other hand, although allegedly belatedly, the defendant is seeking to make genuine attempts to resolve some of those serious concerns. The defendant says those attempts may resolve all of the reasonable concerns of the plaintiff.
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I am told from the bar table, and I accept, that the issues of concern between the parties have now been going on for over ten years. There is a significant amount of evidence as to the real issues between the parties, including the technical issues, which has been filed at the direction of the Court. In my view, one of the issues hindering the resolution of this matter is the subjective attitudes on each side as a result of years, if not decades, of dispute about issues that could have been resolved at an earlier stage.
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As a consequence, it seems to me that the case cries out for an order for mediation and the Court orders, pursuant to s 26 of the Civil Procedure Act 2005, that mediation between the parties occurs. Such an order seems to me to be the better way to facilitate a just, quick and cheap resolution of the real issues between the parties. By that I mean the underlying substantive issues between the parties, rather than simply the question of the transfer of the proceedings into this Court.
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I make it clear that, notwithstanding the specialised jurisdiction of NCAT in areas relating to building works, the Court has (as the parties or their representative would know) extensive experience in dealing with building and technology disputes. My preliminary view is that ultimately it would be better for all of the matters to be dealt with in one set of proceedings and I see no reason why that ought not to be in this Court, subject to the issues already adumbrated above.
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As earlier stated, however, this is a preliminary view on which I have not heard the parties to finality. I intend to make the order as to mediation, together with the judgment just issued, so the parties are aware that it is incumbent upon them to attend, pursuant to the terms of s 27 of the Civil Procedure Act. The parties should also be aware of the likelihood that if mediation does not resolve the matter, there will be an expedited hearing of the matters in this Court; or an order for expedition of the matters before the tribunal.
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On the basis of the above, the Court makes the following orders:
The parties confer in order to agree on a mediator within 14 days that is by 4pm on 29 May 2015;
In the absence of agreement, the matter be referred to the Registrar for mediation in accordance with the Joint Protocol;
Subject to an agreement to the contrary, each party bears its own costs of the mediation and half the costs of a mediator;
The summons is adjourned without further order until 10am on 17 July 2015, at which time, subject to any notification to the Court otherwise, the summons will be heard to finality;
Lastly, the parties have liberty to apply on three working days’ notice to the Court and each other;
I will reserve costs of today. I will also reserve costs of the proceedings up until today that have not otherwise been the subject of an order.
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Decision last updated: 01 July 2015
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