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.
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…
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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AGLC
Shearman v Dosen Holdings [2024] ACTMC 4
Case
[2024] ACTMC 4
Decision Date
CaseChat Overview and Summary
The case of Shearman v Dosen Holdings was brought before the Federal Circuit Court of Australia by the plaintiff, Shearman, against the defendant, Dosen Holdings, concerning defects in the common property of a residential apartment complex. Shearman, a unit owner, alleged that Dosen Holdings, the body corporate managing the apartment complex, breached contractual warranties and Australian Consumer Law provisions by failing to maintain the common property in a proper condition. Shearman sought damages for the loss incurred due to the defects and the costs of rectifying them, as well as an order for costs under rule 1722 of the Federal Circuit and Family Court Rules.
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.