Stanley Melbourne Gillett v Brian John Walsh - [2009] NSWSC 1436

CITATION: Stanley Melbourne Gillett & Anor v Brian John Walsh [2009] NSWSC 1436

HEARING DATE(S): 14/12/09

JUDGMENT DATE :
18 December 2009

JURISDICTION: Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Interlocutory injunction ordered.

CATCHWORDS: Practice and procedure - Strata Schemes Management Act 1996 - Consumer Trade and Tenancy Tribunal - Jurisdiction - Ex parte application to adjudicator for urgent orders restraining defendant from carrying out building works in breach of by-laws - Evidence that adjudicators orders being flouted by defendant - Whether Supreme Court has jurisdiction by interlocutory or other injunction to restrain continuance by defendant of its refusal to abide by the adjudicators orders - Interplay between Consumer Trade and Tenancy Tribunal and Strata Schemes Management Act 1996 - Interlocutory injunctions - Principles

LEGISLATION CITED: Strata Schemes Management Act 1996
Supreme Court Act 1970

CATEGORY: Procedural and other rulings

CASES CITED: Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208
Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 836
Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal (No 2) [2009] NSWSC 937
Crawley v Cochrane (1998) NSW Title Cases 80-051
Stollznow v Calvert [1980] 2 NSWLR 749

PARTIES: Stanley Melbourne Gillett (First Plaintiff)
Juliana Yvonne Schaeffer (Second Plaintiff)
Brian John Walsh (Defendant)

FILE NUMBER(S): SC 55117/09

COUNSEL: Mr J Young (Plaintiffs)
Mr N Eastman (Defendant)

SOLICITORS: Bannermans Lawyers (Plaintiffs)
Gadens Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Friday 18 December 2009

55117/09 Stanley Melbourne Gillett and Anor v Brian John Walsh

JUDGMENT

The proceedings

1 The proceedings before this Court had their genesis in an application made on 26 November 2009, the subject application constituting a request for an interim order to be made under the Strata Schemes Management Act 1996 (the Act or the SSMA].

2 The application was brought by the plaintiffs, Stanley Gillett and Julie Schaeffer. The plaintiffs are tenants in common of lot number 54, Strata Plan 70726. The subject premises are situated at Greenknowe Avenue, Elizabeth Bay.

3 Pursuant to section 217 of the SSMA the Minister appointed a Strata Schemes Adjudicator in relation to interim orders sought by the plaintiffs [under section 170 of the Act].

4 Subsection (1) of section 170 deals with interim orders and provides as follows:

(a) make any order that could otherwise be made by the Adjudicator or the Tribunal, and

(b) renew the order by serving notice in accordance `with section 174 that the order is renewed if a request for its renewal is made not later than three months after the order was made

5 A number of other provisions are made in sections 170, 171 and 172 whereunder:

i. an adjudicator…

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: [2009] NSWSC 1436
Decision Date: 18 December 2009

CaseChat Overview and Summary

The dispute in this case involved Stanley Melbourne Gillett, the plaintiff, and Brian John Walsh, the defendant. The plaintiff sought to restrain the defendant from continuing building works that were in breach of the by-laws governing the conduct of the defendant in the capacity of body corporate of a strata scheme. The case was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the court had the jurisdiction to grant an interlocutory or other injunction to prevent the defendant from continuing to disregard the adjudicator's orders and the interplay between the jurisdiction of the Consumer Trade and Tenancy Tribunal and the Strata Schemes Management Act 1996.

The court considered whether the principles governing the grant of interlocutory injunctions applied in this context and whether the Consumer Trade and Tenancy Tribunal had exclusive jurisdiction over the matter. The court concluded that the principles governing interlocutory injunctions did apply, and that the court had the jurisdiction to grant an injunction where there was evidence that the adjudicator's orders were being flouted by the defendant. The court also held that the Consumer Trade and Tenancy Tribunal did not have exclusive jurisdiction over the matter and that the Supreme Court could intervene where necessary to ensure compliance with the adjudicator's orders.

The court ultimately granted the plaintiff's application for an interlocutory injunction to restrain the defendant from continuing the building works in breach of the by-laws. The court emphasised the importance of enforcing the adjudicator's orders and protecting the rights of the plaintiff and other strata owners. The court also noted that the Consumer Trade and Tenancy Tribunal and the Supreme Court had concurrent jurisdiction in this matter, and that the court was entitled to intervene where necessary to ensure compliance with the adjudicator's orders.

The final orders of the court included an interlocutory injunction restraining the defendant from continuing the building works in breach of the by-laws, and a declaration that the defendant was bound by the adjudicator's orders. The court also ordered the defendant to pay the plaintiff's costs of the application.

Orders