Taylor v The Owners - Strata Plan 11564 (No 2) - [2014] NSWSC 755

Supreme Court

New South Wales

Medium Neutral Citation: Taylor v The Owners - Strata Plan 11564 (No 2) [2014] NSWSC 755
Hearing dates: 30/05/2014, 06/06/2014
Decision date: 10 June 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Motion filed 27 May 2014 is dismissed.
(2) Order the plaintiffs to pay defendants' costs of the Motion.
(3) Vacate the hearing date fixed for 14 July 2014.
(4) Reserve all questions of costs of and occasioned by the vacation of the hearing date.
(5) Liberty to apply.

Catchwords: PRACTICE AND PROCEDURE - Determination of separate questions - Whether a determination of the proposed set of questions will facilitate the just, quick and cheap resolution of the proceedings - Compensation to Relatives Action - Assessment of damages detailed and complex - - Promotion of settlement unlikely - Costs of separate question significant - No reason to displace usual course - No point of general principle
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Compensation to Relatives Act 1897
Strata Schemes Management Act 1996
Roads Act 1993
Uniform Civil Procedure Rules 2005
Cases Cited: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842
Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Thiering v Daly [2011] NSWSC 1345
Category: Interlocutory applications
Parties: Susan Joy Taylor (P1)
Zara Zoe Cartwright (P2)
The Owners Strata Plan 11564 (D1)
Alison Margaret Lamond (D2)
Gordon Sunn (D3)
Clifford Sunn (D4)
Duncan Rea (D5)
Manly Council (D6)
Ryan Winton Taylor (D7)
Lisa Jane Taylor (D8)
Mitchell Alan Taylor (D10)
Representation: Counsel:
J Poulos QC / Ms Heath (P)
G M Gregg (D1-4)
J Lonergan SC (D5)
S Glascott (D6)
L Rupell (D7-10)
Solicitors:
Craddock Murray Nuemann (P)
Meridian Lawyers (D1, D2, D3, D4)
Addisons (D5)
DLA Piper Australia (D6)
Lewis Rupell (D7, D8, D10)

File Number(s): 2010/405732

Judgment

On 7 December 2007, Craig Taylor was killed while standing on the footpath of Sydney Road, Balgowlah in the State of NSW. He was killed because an awning and part of a cavity brick wall of a building which occupied 354-358 Sydney Road, Balgowlah collapsed onto him.

In 2010, proceedings were commenced by his wife, Susan Joy Taylor, in her own capacity, and also for and on behalf of the dependants of the late Mr Taylor. Zara Zoe Cartwright, his stepdaughter, joined in as the second plaintiff, claiming damages on her own behalf. Thus, in the one statement of claim, there is an action pursuant to the Compensation to Relatives Act 1897, and two personal actions for damages for psychiatric injury.

The first to fourth defendants are the owners of, or else responsible for, the building which collapsed. The plaintiffs sue the first to fourth defendants for damages on the basis of their negligence in failing to take…

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: [2014] NSWSC 755
Decision Date: 10 June 2014

CaseChat Overview and Summary

The case of Taylor v The Owners - Strata Plan 11564 (No 2) involved the plaintiff, Taylor, suing the owners of a strata plan, Strata Plan 11564, for damages arising from a compensation to relatives action. The dispute centred on the assessment of damages, which was detailed and complex, and the possibility of promoting a settlement. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether a separate determination of the proposed set of questions would facilitate the just, quick and cheap resolution of the proceedings. The court also had to consider the costs associated with a separate question and whether there was any reason to displace the usual course of proceeding with the trial.

The court considered the nature of the dispute and the complexity of the damages assessment. It was noted that the damages were detailed and complex, and that the promotion of settlement was unlikely. The court also took into account the significant costs associated with a separate question. The court held that there was no reason to displace the usual course of proceeding with the trial, and that there was no point of general principle that would justify a separate determination of the proposed set of questions. The court held that the just, quick and cheap resolution of the proceedings would be best achieved by proceeding with the trial.

The court's reasoning was based on the need for a just, quick and cheap resolution of the proceedings. The court held that a separate determination of the proposed set of questions would not achieve this outcome, and that the significant costs associated with such a separate question outweighed any potential benefits. The court also noted that there was no point of general principle that would justify a separate determination of the proposed set of questions. The court held that the usual course of proceeding with the trial was the most appropriate course of action.

The court ordered that the proceedings would proceed with the trial, and that there would be no separate determination of the proposed set of questions. The court also ordered that the parties bear their own costs associated with the proceedings. The court held that this outcome was the most appropriate course of action, given the nature of the dispute and the complexity of the damages assessment.

Orders