The Owners - Strata Plan No 80453 v Walsh - [2015] NSWSC 931

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 80453 v Walsh [2015] NSWSC 931
Hearing dates: 10 July 2015
Decision date: 10 July 2015
Jurisdiction: Equity Division - Technology and Construction List
Before: Stevenson J
Decision:
Application for determination of separate question refused

Catchwords: PRACTICE AND PROCEDURE – whether there should be separate determination of whether plaintiff has suffered damage by reason of the matters it alleges in its list statement
Legislation Cited: Civil Procedure Act 2005 (NSW)
Strata Schemes Management Act 1996 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 [2014] HCA 36
Owners – Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429
Solarus Projects v Vero Insurance (No 5) [2013] NSWSC 1966
The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd [2012] NSWSC 322
Category: Procedural and other rulings
Parties: The Owners – Strata Plan No 80453 (Plaintiff/Respondent)
David John Walsh (First Defendant)
Milano Investments Pty Ltd (Second Defendant/Applicant)
Representation:
Counsel:
F Hicks (Plaintiff/Respondent)
D S Weinberger (Second Defendant/Applicant)
Solicitors:
Sparke Helmore (Plaintiff/Respondent)
J.S. Mueller & Co (Second Defendant/Applicant)

File Number(s): SC 2011/374915

EX TEMPORE Judgment

These proceedings were commenced on 11 April 2011 in the Consumer, Trader and Tenancy Tribunal and transferred to this Court on 14 November 2011.
The plaintiff is an owners corporation of a strata apartment building in Sans Souci.
The second defendant (now the only active defendant), Milano Investments Pty Ltd, was the builder and developer.
Milano has sold all but 1 of the 24 apartments in the development.
The plaintiff claims that there are some 273 defects in the building and claims damages from Milano in respect of those alleged defects.
On 13 February 2015 the matter was provisionally fixed for hearing for three weeks commencing on 19 October 2015. That date was confirmed on 27 February 2015.
All the evidence has now been served and joint expert reports have been ordered to be prepared in accordance with the usual order for hearing.
By notice of motion filed on 22 May 2015, Milano seeks an order pursuant to Uniform Civil Procedure Rules r 28.2 that the following question be determined separately from any other question and before the trial:

“Did the Plaintiff suffer the damages claimed in the Further Amended Summons and Further Amended List Statement filed on 9 September 2014?"

The basis for that application is the decision of the High Court of Australia in Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 [2014] HCA 36.
Milano contends that the effect of that decision is that as the plaintiff, as an owners corporation, paid nothing to acquire the common property in which the defects are said to exist, it cannot show it has suffered any damage by reason of those defects.
Milano contends that it follows that the separate question will be resolved in its favour and that that will be an end…

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: [2015] NSWSC 931
Decision Date: 10 July 2015

CaseChat Overview and Summary

The Owners - Strata Plan No 80453 filed a proceeding against Walsh in the Supreme Court of New South Wales. The case involves allegations of defective building works carried out by Walsh, which the plaintiffs claim resulted in damage to their property. The plaintiffs seek damages and an order for Walsh to remedy the alleged defects. The primary legal issue before the court was whether the court should make a separate determination regarding whether the plaintiffs had suffered damage due to the alleged defects before proceeding with the substantive claims. The plaintiffs argued that such a determination was necessary to avoid wasting court resources on claims that may be without merit, while the defendant contended that such a preliminary determination was not appropriate.

The court considered the relevant legal principles and authorities on the matter. The court noted that, generally, courts have a broad discretion to manage their own processes and may make preliminary determinations if necessary. However, the court also recognised that such determinations should not be made lightly and should only be used in exceptional circumstances. In this case, the court found that a separate determination of whether the plaintiffs had suffered damage was not necessary. The court reasoned that the substantive claims could be resolved through the usual processes of pleadings, discovery, and evidence. The court also noted that the defendant had the opportunity to challenge the plaintiffs' claims through the usual processes of defence and cross-examination. The court held that a separate determination was not warranted in this case.

The court dismissed the plaintiffs' application for a separate determination. The court held that the plaintiffs' claims would proceed to trial on their merits, without a preliminary determination of whether the plaintiffs had suffered damage. The court's decision was based on the principle that courts should not make preliminary determinations unless they are necessary to avoid a waste of court resources or to ensure a fair trial. The court found that such a determination was not necessary in this case, and that the usual processes of pleadings, discovery, and evidence were sufficient to resolve the substantive claims. The case will now proceed to trial on the merits, with the defendant having the opportunity to challenge the plaintiffs' claims through the usual processes of defence and cross-examination.

Orders