Shearman v Dosen Holdings

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

Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited [2022] NSWCA 146

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272

Bellgrove v Eldridge[1954] HCA 36; (1954) 90 CLR 613

Parties: 

Isobel Christina Shearman (1^st Plaintiff)

Yanni Liu (2^nd Plaintiff)

Cameron James McDougall (3^rd Plaintiff)

Lewis Meegan (4^th Plaintiff)

Tanya Rosanne Doyle (5^th Plaintiff)                 

Caillan Shaw Colville (6^th Plaintiff)

Rachel Jacinta Treglown (7^th 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…