The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd (No 2) - [2025] NSWSC 182

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd (No 2) [2025] NSWSC 182
Hearing dates: On the papers
Decision date: 11 March 2025
Jurisdiction: Common Law
Before: Leeming JA
Decision:
1. Notice of motion filed 6 March 2025 dismissed.

Catchwords:
COSTS – certificate under Suitors’ Fund Act 1951 (NSW) sought – unsuccessful respondent’s submissions had led lower court into error – unsuccessful respondent sought to defend erroneous decision on appeal – inappropriate to grant certificate

Legislation Cited:
Home Building Act 1989 (NSW), ss 18B, 18E
Suitors’ Fund Act 1951 (NSW) s 6

Cases Cited:
Calandra v Murden (No 2) [2015] NSWCA 321
Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156
Donohoe v Albulario (No 2) [2025] NSWSC 34
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

Category: Costs
Parties: The Owners – Strata Plan 87003 (Plaintiff)
Raysons Constructions Pty Ltd (Defendant)
Representation:
Counsel:
G Carolan (Defendant/Applicant)
Solicitors:
Ray Wehbe & Co Solicitors (Defendant/Applicant)

File Number(s): 2024/00265127
Publication restriction: Nil
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2024] NSWCATAP 113

Date of Decision:

20 June 2024

Before:

S Thode (Principal Member), D Fairlie (Senior Member)

File Number(s):

2023/00257814

JUDGMENT

LEEMING JA: By judgment delivered on 25 February 2025, this Court allowed an appeal from orders made by an Appeal Panel of NCAT itself allowing an appeal from the decision of a Senior Member of NCAT which had made substantial rectification orders on the application of the Owners Corporation against Raysons Constructions Pty Ltd, a builder and the present applicant: The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66. Raysons, the unsuccessful respondent, was ordered to pay the Owners Corporation’s costs of the appeal in this Court. The Appeal Panel had only dealt with some of Rayson’s grounds of appeal, despite the entirety having been argued in a hearing extending to a second day. My reasons explained why this Court was unable to address those grounds, and that in light of the narrower jurisdiction of this Court it was not possible, at least in large measure, for Raysons by notice of contention to raise for determination in this Court the undetermined balance of its notice of appeal to the Appeal Panel: at [9]. The result of this Court’s orders was that the Appeal Panel will redetermine Raysons’ appeal on the basis of the construction of s 18E(1)(e) and (f) determined by this Court and on the basis that [35] of the Senior Member’s reasons contains an obvious error. Whether or not all or most of the order for rectification will be confirmed or set aside remains…

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: [2025] NSWSC 182
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiff, The Owners – Strata Plan 87003, brought an action against Raysons Constructions Pty Ltd for damages arising from alleged breaches of contract and duty of care in relation to construction work on a strata title property. The matter was heard by the Court of Appeal, following an initial decision by the lower court.

The primary legal issue before the Court of Appeal was whether a certificate under the Suitors’ Fund Act 1951 (NSW) should be granted to the unsuccessful respondent, Raysons Constructions Pty Ltd. The Act provides for the payment of costs to a respondent who successfully appeals against a decision that was erroneous and detrimental to their position. Raysons Constructions argued that the lower court’s decision was erroneous and that they were entitled to costs under the Act. The Owners – Strata Plan 87003 contended that the respondent’s submissions had led the lower court into error and that it was inappropriate to grant the certificate.

The Court of Appeal held that the lower court’s decision was indeed erroneous, but the respondent’s submissions had contributed to that error. Consequently, the Court found that it was not appropriate to grant a certificate under the Suitors’ Fund Act. The Court held that the respondent’s submissions had been unsuccessful and had led the lower court into error, and it was inappropriate to reward the respondent for their role in the erroneous decision. The Court of Appeal dismissed the appeal and ordered each party to bear their own costs of the appeal.

Orders