Silberstein v The Owners Strata Plan No 55468

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Silberstein v The Owners – Strata Plan No 55468 & Ors [2022] NSWCATCD 207

Hearing dates:

29 November 2022, on the papers

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. Paragraph 3 of the Schedule to the summons issued on 4 October 2022 at the request of the applicant to the first respondent is set aside.

2. If the respondents seek costs, they should file and serve submissions as to costs by 23 December 2023.

3. The applicant may respond by 23 January 2023.

4. The respondent may reply by 30 January 2023.

Catchwords:

PRACTICE AND PROCEDURE – application to set aside a summons to produce documents

Legislation Cited:

Strata Schemes Management Act 2015 (NSW) - ss 9(3), 37, 106(1), 260

Cases Cited:

Commissioner for Railways v Small (1938) 38 SR 564

Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476

Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758

Texts Cited:

The Hon J Bryson KC, Continuing Professional Education - The 2004 Judges Series. Practical Litigation in the Supreme Court and the Federal Court

Category:

Procedural rulings

Parties:

Jessica Hetty Silberstein (Applicant)
The Owners – Strata Plan No 55468 (First Respondent)
Michael Adamo (Second Respondent)
Peter Michael Hans Engelbert (Third Respondent)
William Paul O’Brien (Fourth Respondent)
Terrence Matthew Gagen (Fifth Respondent)
Strata choice Pty Ltd (Sixth Respondent)
Hecker Australia Pty Ltd (Seventh Respondent)

Representation:

Counsel:

Applicant: R Clark
Respondents: W Ilovski

Solicitors:

Applicant: Silberstein & Associates
Respondents: Bannermans Lawyers

File Number(s):

SC 22/05083

Publication restriction:

NIL

REASONS FOR DECISION

Introduction

1. This is an application by the respondents to set aside a summons issued on 4 October 2022 at the request of the applicant to the first respondent (Summons).

2. The content of the Schedule of the Summons is as follows:

A. Definitions

The following definitions apply:

'Document' includes:

a. any record of information mentioned in the definition of document in Part 1 of the Dictionary to the Evidence Act 1995; and b. any other material, data or information stored or recorded by mechanical or electronic means.

'OC' means The Owners - Strata Plan No. 55468.

Unit' means Unit 2202, [XXX] Elizabeth Street, Sydney NSW 2000.

'Works' means the rectification works conducted and to be conducted to any one of the four balcony areas in the Unit, in association with water ingress issues.

B. The documents and things you must produce are as follows:

1. Documents which record or evidence communications referring to, or in relation to, water ingress issues in the Unit and/or to the Works.

2. Documents which record or evidence any inspections, testing, reports, quotes, work orders, invoices, receipts (including drafts of any such Documents), in relation to water ingress issues in the Unit and/or the Works, including without limitation all building manager reports that mention the water ingress issues…