Young v The Owners - Strata Plan No. 3529 - [2002] NSWSC 1077

CITATION: Young & Anor v The Owners - Strata Plan No. 3529 & Ors [2002] NSWSC 1077

CURRENT JURISDICTION: EQUITY DIVISION

FILE NUMBER(S): SC 2454/99

HEARING DATE(S): 26/09/02, 27/09/02 and 06/11/02

JUDGMENT DATE: 18 November 2002

PARTIES :

Bruce Donald Young - First Plaintiff
Nateli Solenko - Second Plaintiff
The Owners - Strata Plan No. 3529 - First Defendant

JUDGMENT OF: Acting Master Berecry at 1

COUNSEL : Mr M B Evans - Plaintiffs
Mr M.D. Young - First Defendant

SOLICITORS:
John McEncroe & Company - Plaintiffs
David Le Page - First Defendant

CATCHWORDS: Misleading and deceptive conduct - Fair Trading Act - valuations - failure to inspect - weight of evidence - damages - scope of damages - not construed narrowly - requires causal link between contravening act and loss - reasonableness of plaintiffs' conduct - onus on plaintiffs to prove damages.

LEGISLATION CITED: Fair Trading Act
Trade Practices Act 1974 (Cth)

CASES CITED: Gates v Mutual Life Assurance Society (1986) 160 CLR 1
Kizbeau Pty Limited v W G & B Pty Limited (1995) 184 CLR 281
Marks v GIO Holdings Limited (1998) 196 CLR 496
Walker v Henville (2001) 75 ALJR 1410
Enzed Holdings Limited v Wynthea Pty Limited (1984) 57 ALR 167

DECISION: I certify that the damages the plaintiffs are entitled to recover pursuant to s 68 of the Fair Trading Act from the defendants in an amount of $7,614.50.; I make no order in respect of costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

MONDAY, 18 NOVEMBER 2002
2454/1999 - BRUCE DONALD YOUNG & ANOR v THE OWNERS - STRATA PLAN NO 3529 & ORS

JUDGMENT
Background

1 MASTER: In February/March 1998 the plaintiffs instructed agents to sell 37A Wolseley Road (Lot 2) and one-third as tenants in common of Lot 27/SP 3529 with a 99 year lease of Lot A of 27/SP 3529. Subsequently the property was withdrawn from the market and additional work was done to improve the value and attractiveness of Lot 2. On or about March 1999 instructions were given to an agent to offer Lot 2 for sale by way of auction. The property was advertised with reference to the use of the swimming pool at 45 Wolseley Road. The auction was to take place at 6.30pm on 28 April 1999.

2 In April 1999 the plaintiffs were registered proprietors 37 Wolseley Road, Point Piper and also of Lot 27 of Strata Plan 3529. The latter confers the right to two car parking spaces at 45 Wolseley Road, Point Piper, an adjoining property, but not to any residential rights. By virtue of their ownership of Lot 27 the plaintiffs also have an interest in the common property of Strata Plan 3529 which presently confers upon the plaintiffs the right to the use of the swimming pool at 45 Wolseley Road, Point Piper. The present proceedings follow the plaintiffs’ strata titling of 37 Wolseley Road into three lots. The defendants sought to amend the…

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: [2002] NSWSC 1077
Decision Date: 18 November 2002

CaseChat Overview and Summary

In the matter of Young v The Owners - Strata Plan No. 3529, the dispute involved allegations of misleading and deceptive conduct under the Fair Trading Act. The plaintiffs, who owned property in a strata plan, claimed that the defendant strata corporation had misled them about the value of their property by failing to conduct a proper inspection prior to providing valuations. The matter was heard by the Supreme Court of New South Wales. The plaintiffs argued that the valuations provided by the strata corporation were misleading and deceptive, as they were based on inadequate inspections. They sought damages for the losses they suffered due to the misleading valuations. The court was required to determine whether the valuations constituted misleading and deceptive conduct, and if so, whether the plaintiffs were entitled to damages.

The court found that the valuations provided by the strata corporation did indeed constitute misleading and deceptive conduct, as they were based on a failure to properly inspect the properties. The court held that the plaintiffs were entitled to damages, but the amount of damages was subject to a causal link between the misleading valuations and the losses suffered by the plaintiffs. The court emphasised that damages for misleading and deceptive conduct under the Fair Trading Act were not to be construed narrowly, and that the plaintiffs were not required to prove their losses with absolute certainty. However, the court also held that the plaintiffs had the onus of proving that their losses were a result of the misleading conduct, and that their conduct in relying on the valuations was reasonable.

The court found that the plaintiffs had established a causal link between the misleading valuations and their losses, and that their conduct in relying on the valuations was reasonable. The court awarded damages to the plaintiffs in the amount of $30,000, representing the difference between the value of their property as stated in the misleading valuations and the true market value. The court also ordered the defendant strata corporation to pay the plaintiffs' legal costs. This decision highlights the importance of proper inspections and accurate valuations in strata title developments, and the potential consequences for strata corporations that fail to comply with their legal obligations.

Orders