Decisions table

COSTS - contested application for costs where parties came to commercial settlement - Owners Corporation abandoned large portion of claims for defects - defendants (the builders) agreed to rectify small proportion of defects originally claimed - Parties agreed no reasons required and Court at liberty to fix quantum of any orders - No issue of principle

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS: - Class 1 appeal - appeal against order under s 121B of the Environmental Planning and Assessment Act 1979 - boundary retaining wall in danger of collapse - further order under s 124 of the Local Government Act 1993 - dispute between landowners as to responsibility to comply with orders - remedial action agreed following conciliation conference - presumption against costs order in Class 1 and Class 2 proceedings - Pt 3 r 3.7 of the Land and Environment Court Rules 2007 - not fair and reas

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Personal Injury

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STRATA SCHEMES - whether by-laws validly made by strata managing agent appointed under s 162 of the Strata Schemes Management Act 1996 - limits on power of agent appointed under s 162 - whether agent can make by-laws concerning construction and exclusive use - whether special resolution of general meeting of owners corporation required

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE - jurisdiction of the Supreme Court - transfers from the District Court to the Supreme Court under s 140 of the Civil Procedure Act 2005 - jurisdiction of the Local Court under s 30 of the Local Court Act 2007 - meaning of "action" for the purposes of s 127 of the District Court Act 1973 - dismissal of proceedings under s 60 of the Bankruptcy Act 1966 (Cth)

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Production of documents; Practice Note SC Eq 11; necessity for exceptional circumstances

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE - application for leave to appeal against a discretionary interlocutory decision- primary Judge dismisses motion to strike out the statement of claim as pleading statute barred causes of action - whether factual issues better left to trial - whether any error warranting appellate intervention against the decision - application dismissed

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CIVIL PROCEDURE - separate question - obligation to take interventionist role - effect of Civil Procedure Act 2005 - overriding purpose intersects with usual warnings about dangers of separate questions CONTRACT - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - construction - general words of release confined to subject matter of dispute - limited by recitals and other admissible evidence EQUITY - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - equitable principle

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS - Court's discretion as to costs under s 98(1) of Civil Procedure Act 2005(NSW) - Whether there is a reason to depart from the usual order as to costs under r 42.1 of Uniform Civil Procedure Rules 2005 (NSW)

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STATUTORY INTERPRETATION - Section 109ZK of Environmental Planning and Assessment Act - effect of repeal of Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 - effect of Clause 2 of Schedule 6 of Statute Law (Miscellaneous Provisions) Act (No 2) 2011 - effect of Section 30 Interpretation Act 1987 STATUTORY INTERPRETATION - Clause 8(2)(b) of Schedule 1 of Civil Liability Act - effect of repeal of Clause 34 of the Environmental Planning and Assessmen

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

REAL PROPERTY - Strata titles - owners corporation's duty to maintain common property - water penetrates plaintiff's apartment in and after episodes of rain - some remedial works undertaken - only partially effective - experts agree on further remedial work to be executed - whether defendant should pay the plaintiff's costs of the proceedings - whether defendant should pay certain of the plaintiff's out of pocket expenses - whether diminution in market value of plaintiff's apartment, if works no

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

REAL PROPERTY - Strata titles -Whether deed providing for specified services unenforceable by reason of Strata Titles Act 1973 (NSW) s 78 - Whether subsequent deeds of assignment were effective.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CTTT Costs Lacking in substance Revised schedule of unit entitlements Community scheme

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE - Variation of interlocutory orders - Error in original order - Court's power to vary. REAL PROPERTY - Strata title - Power of agent appointed under s 162 of Strata Schemes Management Act 1996 to make certain resolutions without consent of individual lot owner

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

EQUITY - application for interlocutory injunction - a lot owner in a strata scheme seeks to restrain the owners corporation from entering into a building contract - the proposed building contract has a component of fire safety works designed to achieve compliance with the local Council's notices under Environmental Planning and Assessment Act 1979 s121B and s121H - another component of the work is arguably to improve or enhance common property - whether the execution of any part of the proposed

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Claim by owners corporation against former compulsory strata manager - claim in detinue and conversion - refusal to deliver up books and records - need to reconstruct records - additional work performed by new strata manager as a result of non-delivery of books and records - legal costs incurred by owners corporation in seeking orders for delivery up of books and records - failure by a former compulsory strata manager to maintain books and records - entitlement of owners corporation to account -

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE - Application for former solicitor to indemnify second plaintiff for costs ordered to be paid by it - indication that first plaintiff may make similar application - solicitor files evidence late - solicitor then proposes to rely on no evidence - findings against solicitor not lightly made but have serious consequences - prospect of inconsistent findings in associated proceedings - risk of injustice and inconsistent findings entail adjournment preferable course.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CONSEQUENTIAL ORDERS - Inquiry into damages - interlocutory injunctions restrain defendants from engaging in certain building works in strata block - plaintiff provides usual undertaking as to damages - final

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE - Deconsolidation of proceedings - proceedings involving residential and commercial strata corporations previously consolidated as shared common substratum of facts - commercial corporation unable rely on statutory warranties - of itself insufficient to warrant deconsolidation - general position that plaintiffs should be represented by one solicitor - rule may be dispensed with in certain circumstances - circumstance that commercial corporation loses faith in solicitor - s

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Owners of Strata Plan authority to initiate legal proceedings - whether ratification possible

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

BUILDING AND CONSTRUCTION - claim of alleged defective work - limitation period - jurisdiction of Consumer, Trader and Tenancy Tribunal to hear and determine building claims - Home Building Act 1989, s48K(7) STATUTORY CONSTRUCTION - statutory warranties as to residential building work - whether landscaping work is "residential building work" - Home Building Act 1989, s 18B - whether evidence of other "residential building work" ADMINISTRATIVE LAW - judicial review of

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STRATA TITLE - Whether Strata Management Statement is binding on body corporate - construction of 28V(1)(a) of Strata Schemes Freehold Development Act 1973 (NSW) - registration of Strata Management Statement without special resolution of body corporate CONTRACTS REVIEW ACT - Strata Management Statement is amenable for review under Contracts Review Act 1980 (NSW) - Construction of "unjust" under Contracts Review Act 1980 (NSW) EQUITABLE UNCONSCIONABILITY - Special Disability required for Equitabl

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

ADMINISTRATIVE LAW - judicial review - jurisdictional error - natural justice or procedural fairness - relief - declaration - application for review of validity of an adjudication application pursuant to the Building and Construction Industry Security of Payment Act 1999 ('the Act') - declaration sought that the adjudicator's determination was void - application to have the adjudicator's decision quashed - adjudicator failed to consider adjudication respondent's submissions referred to in the re

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS - of appeal - exception to the general rule that costs follow the event - omission to address the orders adequately COSTS - of trial - orders to provide separately for costs of claim and cross-claims PROCEDURE - civil - judgments and orders - appeal from orders entered on Court's computerized record system - how orders to be entered - orders on system to be self-contained

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

TECHNOLOGY AND CONSTRUCTION - motion for summary dismissal of plaintiff's claim for breach of statutory warranty and negligence - s 18B of the Home Building Act 1989 (NSW) - statutory warranties as to quality of construction work - s 18E(1) of the Home Building Act 1989 (NSW) - proceedings for breach to be commenced within seven years of completion of work - ss 23(1), 24(1), 24(2) and 33 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - Reg 11(1) of the Consumer, Trader and Tenancy R

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STATUTORY INTERPRETATION- Home Building Act 1989, ss 18C and 18E- s 18C imposes a contract for the work between developer and successor in title- what are the terms of that notional contract- is one cause of action only created- what is meant by "completion of the work" in s 18E- when completion of the work occurred is a question of fact properly found by the primary judge. STATUTORY INTERPRETATION- Civil Liability Act 2002, s 34- whether a claim under s 18C of the Home Building Act 1989 is an a

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

BUILDING CONTRACTS - claim by owners' corporation against builder seeking to recover costs of rectification works covered by statutory warranty under Pt 2C of the Home Building Act 1989

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LIMITATION OF ACTIONS - claim in tort - time of accrual of cause of action - when link between the physical manifestation and the underlying defect is known or ought to be known - what relevant knowledge is as to actual physical defect in the structure, not legal responsibility for the cause of the defect. TORTS - joint or several tort-feasors - contribution - other tort-feasor sued unsuccessfully not liable for contribution - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), ss 5(1)(c) and

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

ADMINISTRATIVE LAW - judicial review of

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE - strike out application in respect of proceedings bought out of time - statutory interpretation - time limit in s109ZK of the Environmental Planning and Assessment Act 1979 - purposive approach - meaning of the terms 'building action' and 'building work'.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

REAL PROPERTY - Strata and related titles and occupancy - whether an owners corporation required to upgrade an exhaust ventilation system to service the needs of a lot owner - whether owners corporation allowing the lot owner to connect to the exhaust ventilation system but refusing to guarantee any particular level of exhaust ventilation to the lot was a breach of Strata Schemes Management Act 1996 ss 62 (1) and (2) - whether special resolution of owners corporation complied with Strata Schemes

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

VALIDITY OF BY-LAWS- By-laws made under Strata Schemes Management Act 1996 authorising "Facilities Agreement" with Rec Club 15 minutes from resort- whether such by-laws were outside the powers of the Owners' Corporation- the power to make by-laws is to be construed liberally- limitations on the making of by-laws to be construed from the enabling statute- there must be a clear nexus between the subject matter of a by-law and the use or occupation of the property in question- there is no precise r

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CONTEMPT:- failure to comply with Court orders to undertake works for fire safety measures within three months of the orders - guilty plea - whether contempt wilful - whether the Court has the power to impose a fine - whether a fine is warranted - no fine warranted

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PROPERTY LAW - Authority of Owners Corporation to take legal action to recover outstanding levies - failure to pay levies contra to Strata Schemes Management Act - defence struck out at Local Court - denied permission to amend or re-plead defence - whether applicant denied procedural fairness - whether commencement of legal action by Owners Corporation valid - whether Magistrate justified in determining proceedings relating to the commencement of legal action where "no evidence" is

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

INTERIM RELIEF - injunction - where the defendant has undertaken significant building works to a unit in a strata plan without the consent of the Owners Corporation - where the Owners Corporation has issued a notice of breach of by-laws - where the defendant has sold the unit to a third party purchaser - where the transfer has been lodged at the Land Titles Office but not yet registered - whether the Owners Corporation is entitled to an interim injunction to preclude the defendant from taking fu

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

DEVELOPMENT APPLICATION:- appeal following refusal of development consent - residential flat building - existing use - compatibility with existing and likely future character - Gosford Planning Scheme Ordinance - Gosford Development Control Plan No. 159 (Character) Amendment One - different but not incompatible character - bulk and scale - compatible with surrounding development - appeal upheld COSTS:- appeal following refusal of development consent - permissibility founded upon existing use - e

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

REAL PROPERTY – Strata Title – management and control – where lot owner’s use of lot causes damages to another lot owner and to walls of other lot being common property – inquiry as to damages – whether first lot owner liable to compensate other lot owner and/or owners corporation to whose lot first owner caused damage – duty of owners corporation to maintain common property

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS - application for costs of vacated

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

ASSIGNMENT - assignment of cause of action - GC9 of Building Contract forbade assignment of the contract or any payment thereunder without prior written approval - held an assignment of a claim for payment without consent by Liquidator of the contractor did not have effect as an equitable assignment. CORPORATIONS - winding up - disposition by Liquidator of claim for payment took effect under s477(2) of Corporations Act notwithstanding that assignment was not otherwise possible.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

TORT - negligence - pathway across strata home units in use for many years as a short cut between a primary school and the main road - pathway visible at night for a short distance due to street lighting but otherwise unlit - plaintiff falls into a drain culvert which is visible during the day but not on a dark night - duty of care - whether duty of care breached - nature and extent of any obligation of the defendant to trespassers using the pathway at night - whether drain structure an obvious

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS -- assessment -- certificate -- taken to be

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

REAL PROPERTY – Strata schemes – Agreement for managing common property – Whether such agreement was authorised by general meeting of owners corporation, or by its executive committee, or by the affixation of its seal, or was entered into by conduct. - CONTRACT – Breach – Repudiation – Whether conduct of manager of common property of strata scheme in using electricity chargeable to the owners corporation was a breach justifying termination of the contract. - EQUITY – Remedies – Injunctions – Whe

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STRATA MANAGEMENT – building with mixed commercial and residential – two Owners Corporations sharing costs for shared facilities – obligations in relation to determining shared costs – STRATA MANAGEMENT STATEMENTS (SMS) – whether dispute has arisen regarding proportions of shared costs – appointment of Expert under dispute resolution mechanism – conduct of parties – whether implied term – amendment of SMS – whether in circumstances Court should appoint Expert

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE - proceedings - separate questions - where some issues might be more appropriately determined by an expert in accordance with agreement - whether part of proceedings should be stayed

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS - various applications for special costs orders including a Sanderson order or Bullock order and orders for indemnity costs following service of Offers of Compromise - application for an order that interest run on unpaid party/party costs

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Home and Commercial Units - Strata Titles - Application to terminate strata scheme - Appropriate principles - Borsky v Proprietors Strata Plan No 19833 (1986) 7 NSWLR 84 applied - Strata Titles Act 1973, s 51

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Proportionate liability provisions of Civil Liability Act - Whether proportionate liability provisions of Civil Liability Act apply to claims for breach of statutory warranties implied by Home Building Act

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STRATA TITLES – whether agreement is a “caretaker agreement” – power to make by-laws – validity of by-laws – by-laws and necessary degree of connection. - CONTRACTS – illegal and void contracts – whether grant of rights was illegal because party did not hold licence as required by statute – whether contract void or unenforceable because of illegality – impermissible delegation of the owners corporation’s functions. - PRACTICE AND PROCEDURE – discretionary grounds for granting declaratory relief

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE :- separate determination of questions - whether facilitate just; quick and cheap resolution of real issues - order for separate determination not made - early final hearing of all issues ordered - directions for preparation for hearing made

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PERSONAL INJURY - claim in contract and tort by a guest at premises for injuries sustained in a fall at the top of the entrance steps - whether any of the defendants owed a duty of care as occupier of the premises at the point of the plaintiff’s fall - if so, whether the duty of care as occupier was breached - contributory negligence - whether Trade Practices Act 1974 applies - if so, whether there was a breach of an implied warranty DAMAGES - out-of-pocket expenses - future medical expenses - e

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.