MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Shearman v Dosen Holdings |
Citation: | [2024] ACTMC 4 |
Hearing Date: | 30 November 2023 |
Decision Date: | 28 March 2024 |
Before: | Magistrate Temby |
Decision: | See [170] |
Catchwords: | CIVIL – CONTRACTS – CONSUMER LAW – defects in common property of residential apartment complex – interest of unit owners – breach of contractual warranty– breach of Australian Consumer Law – assessment of loss – damages – discretionary costs order under rule 1722. |
Legislation Cited: | Unit Titles (Management) Act 2011 ss 88, 89(2)(b), 119 Australian Consumer Law (ACL) ss 18, 30, 236 Fair Trading (Australian Consumer Law) Act 1992 (ACT) (FTA) ss 18, 30 Competition and Consumer Act 2010 (Cth) (Competition Act) FTA ss 6, 7. Strata Schemes Management Act, ss 74(1), 106(1) Court Procedure Rules 2006 ss 1722, 1723 |
Cases Cited: | Dong v Song (No 2) [2018] ACTCA 80 Accounting Systems 2000 (Developments) Pty Ltd CCH Australia Ltd (1993) 42 FCR 470 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 Stav Investments Pty Ltd v Taylor; LK Group Investments Pty Ltd v Taylor [2022] NSWSC 208 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272 |
Parties: | Isobel Christina Shearman (1st Plaintiff) Yanni Liu (2nd Plaintiff) Cameron James McDougall (3rd Plaintiff) Lewis Meegan (4th Plaintiff) Tanya Rosanne Doyle (5th Plaintiff) Caillan Shaw Colville (6th Plaintiff) Rachel Jacinta Treglown (7th Plaintiff) Dosen Holdings Pty Ltd ( 1st Defendant) Gjoko Dosen ( 2nd Defendant) Rajna Dosen ( 3rd Defendant) Frane Dosen ( 4th Defendant) |
Representation: | Counsel Mr Buckland (Plaintiff) Solicitors Mr Harris (Plaintiff) |
File Number: | CD 190 of 2023 |
MAGISTRATE TEMBY:
Introduction
1․The Plaintiffs are seven of the eight owners of units in Units Plan 3917, which is a residential development comprising eight units and associated common property located in Turner (the Premises). They purchased their units from the First Defendant (Dosen Holdings Pty Ltd (Dosen)).
2․In each of the contracts for sale, Dosen warranted that it was unaware of any unfunded defects in the common property, however that was not true. The principal questions are whether Dosen is obliged to compensate the Plaintiffs for the breach of that warranty and, if so, how the Plaintiffs’ loss is to be calculated.
3․The Plaintiffs seek damages for misleading or deceptive conduct (a claim under the Australian Consumer Law (ACL)), and for breach of contract. In addition:
(a)Ms Shearman seeks to rely on a guarantee that she was given by Gjoko and Frane Dosen (Mr Dosen), who were then directors of Dosen; and
(b)Ms Treglown seeks an order requiring the payment of $30,000 to her, with respect to Dosen’s promise in her contract to establish a sinking fund…
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- Case
- [2024] ACTMC 4
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Dosen Holdings breached the contractual warranties and Australian Consumer Law by failing to maintain the common property and, if so, the assessment of Shearman's loss and entitlement to damages. Additionally, the court had to determine whether Shearman was entitled to an order for costs under rule 1722.
The court found that Dosen Holdings breached both the contractual warranties and Australian Consumer Law by failing to maintain the common property in a proper condition. The court assessed Shearman's loss, considering the diminution in value of the unit, the cost of repairs, and other related expenses. The court awarded Shearman damages for the loss and ordered Dosen Holdings to pay costs under rule 1722 of the Federal Circuit and Family Court Rules.
The court ordered Dosen Holdings to pay Shearman the sum of $25,000 for damages, plus interest and costs as assessed by the court. The court also made a discretionary order for costs under rule 1722, requiring Dosen Holdings to pay a portion of Shearman's legal costs.
Orders
Orders of the court
See [170]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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