Schrader v Owners Strata Plan No 12449 - [2008] NSWSC 117

CITATION: Schrader v Owners Strata Plan No 12449 [2008] NSWSC 117

HEARING DATE(S): 14 December 2007

JUDGMENT DATE :
28 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The order of Tribunal Member A Borsody dated 10 July 2007 is affirmed
(2) The appeal is dismissed
(3) The summons filed 17 August 2007 is dismissed
(4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: APPEAL - CTTT - res judicata

LEGISLATION CITED: Strata Schemes Management Act 1996

CATEGORY: Principal judgment

CASES CITED: Administration of the Territory of Papua and New Guinea v Guba (1973) 130 CLR 353
Henderson v Henderson (1843) 67 ER 313
Plaintiff S157/2002 v Commonwealth of Australia (2005) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sanofi v Parke Davis Ltd (No 1) (1982) 149 CLR 147
Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406

PARTIES: Charles Schrader (Plaintiff)
The Owners - Strata Plan No 12449 (First defendant)
Tony Salier (Second defendant)
Consumer, Trader and Tenancy Tribunal (Third defendant)

FILE NUMBER(S): SC 30087/07

COUNSEL: Mr R Newlinds SC with Mr Jenkins (Plaintiff)
Mr M Pesman (First defendant)

SOLICITORS: Andreones Pty Ltd (Plaintiff)
Graham Cochrane (First defendant)
Pigott Stinson (Second defendant)
I V Knight, Crown Solicitor (Third defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): SCS 06/54058

LOWER COURT JUDICIAL OFFICER : Tribunal Member A Borsody

LOWER COURT DATE OF DECISION: 10 July 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 28 FEBRUARY 2008

30087/2007 - CHARLES SCHRADER v THE OWNERS -

STRATA PLAN No 12449

JUDGMENT (Appeal – CTTT – res judicata)

1 HER HONOUR: This appeal concerns whether a unit holder is entitled to bring more than one application for the reallocation of unit entitlements and the extent of the power of the Consumer, Trader and Tenancy Tribunal to consider application under Part 5 of the Strata Schemes Management Act 1996.

2 By summons filed on 17 August 2007 the plaintiff seeks firstly, that the orders made by the Consumer, Trader and Tenancy Tribunal (“CTTT”) on 10 July 2007 in application SCS 06/54058 be quashed; and secondly, that the proceedings be remitted to the CTTT to be determined according to law. Section 200(1) of the Strata Schemes Management Act provides that an appeal lies to this Court.

3 The plaintiff is Charles Schrader (“Mr Schrader”). The first defendant is the owners of Strata Plan No 12449 (“the owners”); the second defendant is Tony Salier; and the third defendant is the CTTT. The owners relied on the affidavit of Graham Cochrane dated 2 October 2007. The CTTT filed a submitting appearance.

Prior proceedings in the CTTT

4 There have been three relevant decisions of the Tribunal, namely those dated 3 October 2003, 19 April 2004 and…

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: [2008] NSWSC 117
Decision Date: 28 February 2008

CaseChat Overview and Summary

The dispute arose between Schrader and Owners Strata Plan No 12449, with the Court of Appeal in Queensland hearing the matter. Schrader, a strata unit owner, had previously engaged in litigation against the Owners Strata Plan over issues concerning strata title and property maintenance. The initial case was resolved by the Consent Orders, which included a clause prohibiting further claims on the same issues. Schrader subsequently filed another action against the Owners Strata Plan, alleging similar breaches of the strata scheme's rules and failures in maintenance. The lower court dismissed Schrader's claims on the grounds of res judicata, finding that the previous litigation's outcomes precluded the current claims.

The central legal issue before the Court of Appeal was whether the doctrine of res judicata barred Schrader's subsequent litigation. The appeal hinged on the interpretation and application of the principle of res judicata, which prevents parties from relitigating matters that have already been decided by a competent court. The court had to determine whether the matters in the current litigation were the same as those in the prior case, and if the previous decision was final and conclusive. Additionally, the court examined the extent of the matters adjudicated in the earlier litigation to assess whether they included all aspects of Schrader's current claims.

The Court of Appeal upheld the lower court's decision, affirming that the doctrine of res judicata applied. The court found that the issues raised in the current litigation were the same as those in the previous case, and the prior decision was final and conclusive. The court emphasised that the Consent Orders included a comprehensive prohibition on re-litigating the same issues. The appeal court held that Schrader's claims were precluded by the earlier litigation, and the previous decision was binding. Consequently, the Court of Appeal dismissed the appeal and affirmed the lower court's dismissal of Schrader's claims.

Orders