The Owners, SP 75903 v Dix - [2011] NSWSC 245

Supreme Court

New South Wales

Medium Neutral Citation: THE OWNERS, SP 75903 v DIX & ANOR [2011] NSWSC 245
Hearing dates: Thursday 9 December 2010
Decision date: 05 April 2011
Before: Hall J
Decision:
The separate question set out in paragraph 1 of the Notice of Motion filed on 16 July 2010 is ordered to be determined separately in accordance with UCPR 28.2. The question is answered in the following terms - The residential and commercial building constructed at 228-232 Condamine Street, Manly Vale, as represented in the drawings referred to in the defendants' letter of 20 January 2004 to Rasco Developers and The Jaara Group, has a rise in storeys of 3, within the meaning of clause 57BC of the Home Building Regulation 1997.

Catchwords: STATUTORY CONSTRUCTION - construction of the Home Building Regulation 1997 made under the Home Building Act 1989 - clause 57BC(5) - basis for determining exclusion from exemption for multi-storey building - insurance not required for a building having a "rise in storeys of more than 3" - whether Lower Ground Floor was a level that "includes accommodation only intended for vehicles" and so excluded from the calculation of the number of levels (Regulation was repealed with effect from 1 September 2004)
SEPARATE QUESTION - determination of UCPR 28.2 - separate question determination in relation to clause 57BC(5) of the Home Building Regulation 1997 would be an appropriate exercise of power under UCPR 28.2
Legislation Cited: Building Regulations 1994 (Vic)
Building (Residential Building Warranty) Amendment Act 2003 (ACT)
Building (Multi-Storey Residential Building Exemption) Regulation 2002 (Vic)
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amended (Quality of Construction) Act 2003
Home Building Act 1989
Home Building Amendment (Insurance Exemptions) Regulation 2003
Home Building Regulations 1997
Cases Cited: Bailey & Bailey v Director-General Department of Energy Climate Change and Water & Ors [2010] NSWSC 979
Ford v Greer [2008] NSWSC 1181 Commonwealth Bank of Australia v Clune & Anor [2008] NSWSC 1125
Fitzgerald v Parramatta Leagues Club Limited [2010] NSWSC 1126
Street & Ors v Luna Park Sydney Pty Limited & Ors [2007] NSWSC 697
Category: Principal judgment
Parties: THE OWNERS, SP 75903 v Lyall Ernest DIX & ANOR
Representation: Counsel:
P: D Grieve QC/W F Kerr
D: D Feller SC/P Bambagiotti
Solicitors:
P: Suzie Broome & Co
D: Norton Rose, Australia

File Number(s): 2007/265329

Judgment

Introduction

HIS HONOUR : The plaintiff, by notice of motion filed on 16 July 2010, seeks an order for the determination and decision of a separate question.

The application raises two issues. Firstly, whether the power of the Court to determine a separate question under the provisions of UCPR 28.2 should be exercised. Secondly, in the event that the power is exercised, the decision on the separate question.

For the purposes of the separate question, the parties agreed on a statement of facts.

The factual matters arising from the Amended Statement of Claim filed on 8 February 2010 were summarised in the plaintiff's written submissions as follows:-

"4.…

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: [2011] NSWSC 245
Decision Date: 05 April 2011

CaseChat Overview and Summary

The Owners, SP 75903, sought to determine whether a Lower Ground Floor was a level that "includes accommodation only intended for vehicles" and was therefore excluded from the calculation of the number of levels for the purposes of determining whether a multi-storey building is exempt from the requirement to hold insurance. The dispute arose from the interpretation of clause 57BC(5) of the Home Building Regulation 1997, which was made under the Home Building Act 1989. The relevant Regulation was repealed with effect from 1 September 2004. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether a Lower Ground Floor that included accommodation only intended for vehicles should be considered in determining the number of storeys for the purposes of the exemption. The court had to determine whether the Lower Ground Floor fell within the exclusion specified in clause 57BC(5) of the Home Building Regulation 1997. Additionally, the court was required to decide whether the determination of this question was an appropriate exercise of power under UCPR 28.2.

In resolving these issues, the court noted that the interpretation of clause 57BC(5) required a consideration of the ordinary meaning of the words used, the purpose of the regulation, and any relevant statutory context. The court found that the Lower Ground Floor in question did not include accommodation only intended for vehicles, and therefore, it was not excluded from the calculation of the number of levels. The court also determined that the separate question regarding the interpretation of clause 57BC(5) was an appropriate exercise of power under UCPR 28.2, as it involved a pure question of law that did not require the court to make findings of fact.

The court ordered that the Lower Ground Floor was not excluded from the calculation of the number of storeys for the purposes of determining whether the building was exempt from the requirement to hold insurance. The court's determination was based on the interpretation of the relevant statutory provisions and did not require the court to make findings of fact.

Orders