Stolfa v Owners Strata Plan 4366 & ors - [2009] NSWSC 844

CITATION: Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 844

HEARING DATE(S): 27 July 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 27 July 2009

DECISION: Plaintiff to pay defendants’ costs on indemnity basis from date of Calderbank offer

CATCHWORDS: COSTS – where plaintiff failed on two issues but succeeded on a third – where no dispute as to third issue except as to extent of damage caused by defendants – where plaintiff fails to better Calderbank offer – held: plaintiff to pay defendants’ costs on an indemnity basis, except for cost of expert’s report relevant to issue to be decided on subsequent inquiry as to damages

CATEGORY: Consequential orders

CASES CITED: Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589

PARTIES: Veronica & Raffaele Stolfa (plaintiffs)
Owners Strata Plan 4366 (first defendant)
John Hempton & Joanna Kalowski (second defendants)
Stephen Hempton & Tonia Tschanz (third defendants)

FILE NUMBER(S): SC 4087/07

COUNSEL: Mr M A Ashhurst SC (plaintiffs)
Mr P W J Gray SC (second & third defendants)

SOLICITORS: W G McNally Jones Staff (plaintiffs)
David Le Page (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday 27 July 2009

4087/07 Veronica Stolfa & Anor v The Owners Strata Plan 4366 & 4 Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: Three issues arise for present consideration consequent upon the judgment given on 26 June 2009 [Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589].

2 The first is the question of costs of the proceedings to date. The plaintiffs failed on what can conveniently be called “the void issue” and “the lot 3 issue”. However, they succeeded in obtaining declarations to the effect that the second and third defendants were liable to compensate them for the reasonable costs of repairing damage occasioned to Unit 2 by the performance of building works by or on behalf of those defendants in and about Units 1 and 3, in respect of which there is to be an inquiry as to damages.

3 The defendants submit that, insofar as the plaintiffs succeeded on “the damages/nuisance issue”, it was never in dispute in the proceedings. As I recorded in the principal judgment, although it has never been an issue that the works carried out by the Hemptons and by Stephen Hempton have caused damage to Unit 2, and that those defendants are liable to make good that damage, there was and remains controversy as to the extent of the damage so caused. While the defendants acknowledged that the damage so caused would have to be fixed, and made an initial offer of $5,000 to constitute a fund towards the cost of those repairs, there appears to be a considerable gulf between what the Stolfas asserted was the relevant damage and what the defendants were prepared to acknowledge. The defendants did contest issues of causation and quantum. Those issues remain unresolved, and will only be resolved on…

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.

Continue reading Stolfa v Owners Strata Plan 4366 & ors

Details

AGLC: Stolfa v Owners Strata Plan 4366 [2009] NSWSC 844
Case: [2009] NSWSC 844
Decision Date: 27 July 2009

CaseChat Overview and Summary

The case of Stolfa v Owners Strata Plan 4366 & ors involved the plaintiff, Stolfa, pursuing a legal action against the defendants, the owners of a strata plan, and others. The dispute centred around damages incurred due to alleged negligence in the management and maintenance of the strata plan properties. The matter was heard in the Supreme Court of New South Wales.

The central legal issues the court had to decide included whether the defendants were negligent in their management of the strata plan, the extent of damages caused by any such negligence, and the appropriate allocation of costs between the parties. Specifically, the court needed to determine whether Stolfa was entitled to costs on an indemnity basis, given that the plaintiff had failed on two of the issues but succeeded on a third.

The court reasoned that Stolfa had failed to improve upon a Calderbank offer made by the defendants, which was a formal offer to settle the case. This failure resulted in the court ordering Stolfa to pay the defendants' costs on an indemnity basis, meaning Stolfa was liable for the defendants' legal expenses. However, the court also noted that there was no dispute as to the extent of damage caused by the defendants except for the issue of damages, which would be determined in a subsequent inquiry. Consequently, the costs associated with the expert's report relevant to the damages issue were to be borne by the defendants.

The final orders of the court included the direction that Stolfa pay the defendants' costs on an indemnity basis, with the exception of the costs of the expert's report concerning the damages issue. This decision underscored the importance of the Calderbank offer in determining the allocation of costs and highlighted the need for parties to carefully consider offers of settlement in the context of litigation.

Orders