Decisions table

PROCEDURE – Supreme Court Procedure – New South Wales – Jurisdiction and generally – Jurisdiction – whether Supreme Court of New South Wales has jurisdiction to remove from the District Court, pursuant to Civil Procedure Act 2005, s 140, an appeal under (NSW) Strata Schemes Management Act 1996, s 200.

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

ORDERS - final orders in lengthy reference process - whether

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

PROCEDURE – Costs – Departing from the general rule – costs follow the event – interest on costs

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

BUILDING AND CONSTRUCTION—Home Building Act 1989 Part 2C—joint venture to construct aged person units—one joint venturer contracts with builder to erect units on land—other joint venturer is the registered proprietor of the land—owners corporation acquires title from registered proprietor—whether owners corporation is entitled to the benefit of a statutory warranty enforceable against the builder by operation of s 18D of the Home Building Act 1989

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

CORPORATIONS – STATUTORY DEMAND – COSTS – SOLICITORS – Defendant overlooks service of Statutory Demand – Plaintiff takes advantage of oversight, knowing debt disputed, and files winding up application against obviously solvent Defendant – proceedings eventually settled – costs dispute – indemnity costs sought – both parties’ solicitors acted in inflammatory manner – observations on professional conduct.

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

ADMINISTRATIVE LAW – statutory appeal under s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 – decision by Consumer, Trader and Tenancy Tribunal concerning the amount of excess payable for an insurance claim made under a statutory policy of insurance issued pursuant to Home Building Act 1989 – $500 or $100,500 – whether only a factual question involved or whether the appeal involves a question with respect to a matter of law - INSURANCE LAW – construction of statutory policy of insu

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

CONTRIBUTION - whether a dismissal of main proceedings against a joint tortfeasor on a procedural basis precludes a claim for contribution by another joint tortfeasor - STATUTORY INTERPRETATION - whether the imposition of the statutory obligation on an owners corporation under s 62 of the Strata Schemes Management Act 1996 amounts to "damage" - REFEREES - adoption of report

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

COSTS - application for indemnity costs based on an offer of compromise in respect of which the defendant obtained a

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

BUILDING CONTRACT - breach by builder - work not in conformity with plans & specifications - waterproofing system - whether system installed as effective as that specified - query whether issue one of mitigation with onus on builder. - BUILDING CONTRACT - breach by builder - whether demolition and reinstatement to produce compliance with contract reasonable - whether damages recoverable on that basis. - HOME BUILDING INSURANCE - breach of statutory implied warranties by builder – insurance - suc

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

APPEAL - Practice and procedure - Question of law - Cross claim in Local Court for damages and loss of rent - Finding by Magistrate that plaintiff statute barred from cause of action and that defendant did not breach statutory duty - Whether Magistrate erred in not finding for plaintiff

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

CORPORATIONS – COSTS – Application to set aside Statutory Demand – whether Defendant creditor should bear costs on the indemnity basis when put on notice of fatal flaw in creditor’s Statutory Demand.

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

REFEREES/REFERENCES - Whether the Referee's explanation impacts on findings previously made in

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

STRATA TITLES – Duty of Owners’ Corporation to maintain common property in Strata Schemes Management Act 1996 s 62(1) – Ingress of water through exterior walls caused damage to carpet in August 2003, ineffective repairs were arranged by Owners’ Corporation, dampness and water leaks in 2005 and 2006, flooding in June 2007, extensive interior damage, tenant left, premises uninhabitable from about August 2006 – Many calls for action by Owners’ Corporation and no effective response – Claim for damag

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

TORTS - claim by a tenant against the proprietors of a strata plan for injuries received on the common property of a building in which he resided - whether the duty of care as occupier was breached - contributory negligence

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

CORPORATIONS - winding up in insolvency - requirements for service of statutory demand and originating process - effect of tender of payment of creditor's claim - presumption of insolvency from non-compliance with statutory demand - requirements for proof of solvency

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

COSTS – where plaintiff seeks leave to discontinue proceedings in light of action taken by defendant after proceedings instituted which removes need for further proceedings – where plaintiff’s success is only partial – whether to depart from ordinary costs consequences of discontinuance.

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

COSTS :- principles to apply in Class 1; effective surrender of a party; absence of disentitling conduct by moving party

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

Proceedings commenced by summons - grounds for relief unclear - application for summary dismissal on grounds that no reasonable cause of action disclosed - Held: application for dismissal premature - orders made requiring plaintiff to plead its case.

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

Building and construction contract – Fire detection and alarm system - Total failure of consideration - Requirement to supervise – Responsibility for design

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

PROFESSIONS AND TRADES – lawyers – liens – whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer – construction of retainer agreement – where there is no distinction to be drawn between this case and another case considering the same form of retainer

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

LIMITATION OF ACTIONS - general - statute of limitation – plaintiff sought to join, under r 6.19 of the Uniform Civil Procedure Rules 2005, an additional defendant (“Brookfield”) to the action so as to make a claim against it in tort – whether the joinder was futile because the claim was statute barred under s 14(1)(b) of the Limitations Act 1969 – held that there was not sufficient information known of the damage suffered by the plaintiff as a result of Brookfield’s negligence and the circumsta

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

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

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis –defendants made an offer to the plaintiff under r 20.26 of the UCPR, to which r 42.15(2)(b)(i) applied, which the plaintiff rejected – whether the Court should exercise its discretion not to award the defendants indemnity costs as contemplated by r 42.15(2) – plaintiff argued that such discretion should be exercised because the plaintiff’s non-acceptance of the offer was “not plainly unreasonable” – held th

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

PROFESSIONS AND TRADES - lawyers - liens - whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer - construction of retainer agreement - no express obligation in the retainer agreement that firm should be paid professional and photocopying costs incurred after termination

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

PRACTICE AND PROCEDURE – Claim for damages by Owners’ Corporation against builders for defective construction - reference to referee of both liability and quantum – referee reports on liability and quantum – parties agree that reports on liability should be adopted – parties also agreed on quantum of damages in respect of some defects – application by plaintiff that report on quantum should be rejected and application by defendants that report on quantum should be adopted – where referee rejecte

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

Strata Schemes Management Act - obligations on owners corporation under section 62 to properly maintain and keep in a state of good and serviceable repair common property - owners corporation brings proceedings against builders for defective balustrades on balconies - individual owner seeks damages against owners corporation for breach of obligations imposed by section 62 - query whether bringing and prosecuting action against builder satisfies the owners corporations obligations under section 6

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

PROCEDURE – security for costs – cross-defendants seek orders that cross-claim filed by first defendant be dismissed under r 42.21(3) of the Uniform Civil Procedure Rules for failure to comply with order requiring provision of security for costs – consideration of all relevant circumstances - cross-claim dismissed - PROCEDURE – cross-defendants seek orders that cross-claims filed by second defendant be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules – onus on cross-defendants to s

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

STRATA TITLES - execution of deeds - deed executed by Strata Managing Agent without complying with s238(3) of Strata Schemes Management Act and attesting date of affixing seal did not bind the Owners Corporation - CONTRACT - repudiation - Building Manager used electricity through the meter of the Owners Corporation for five years without installing its own meter and without paying - HELD repudiatory conduct termination was effective

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

BUILDING AND CONSTRUCTION CONTRACTS – home owners’ warranty insurance – date of commencement of work – whether statutory test of commencement is exclusive – limitation periods – whether notification of defects provided within time – statutory discretion to extend time – whether discretion arises – if discretion had arisen, whether it should have been exercised. - STRATA TITLES – management and control – awareness of defects – whether through owners’ corporation or proprietors.

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

BUILDING AND CONSTRUCTION - Building Services Corporation Act 1989 - statutory insurance scheme - indemnity for loss where notification of defects - referee's report - time limitations - whether notification of defects sufficient - SUMMARY

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

COMPULSORY ACQUISITION OF LAND :- right of body corporate to claim for injurious affection to individual units in strata scheme; market value; disturbance

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

EASEMENTS - "full and free right" to park vehicles on burdened lot - whether valid as grant of easement - whether right exclusive.

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

INSURANCE – Home warranty insurance - Claim made by successors in title to the developer in respect of defects - Policy defined "Contractor" as the person who entered into building contract - Whether the individuals named in the Policy were the "contractor" or whether a company controlled by them had entered into the building contract - Inferences to be drawn from contemporaneous documentation - Need to consider legislative amendments.

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

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

Statutory construction - Interpretation Act 1987 - Home Building Act 1989 - Examination of what are the circumstances that entitle a person to the benefit of a statutory warranty as provided for in section 18D of the Home Building Act - Whether the statutory scheme avoids the requirement of privity of contract because it provides its own criterion, which is whether the work was done on behalf of the relevant person - Holding that section 18D avoids the privity of contract rule

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

REAL PROPERTY – strata title – management and control – body corporate: powers, duties and liabilities – duty under s 62(1) of Strata Schemes Management Act 1996 properly to maintain and keep in a state of good and serviceable repair the common property – whether duty strict – whether owners corporation breached duty – whether plaintiff caused or contributed to own loss or is estopped from asserting loss – whether plaintiff failed to mitigate loss – held that duty strict – owners corporation bre

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

STRATA SCHEMES – Orders appointing strata managing agents to exercise all the functions of an owners corporation – Meetings at which resolutions raising levies purportedly passed – Whether strata managing agent exercised the function of the owners corporation at such meetings – Whether there were limitations on the appointment of the strata managing agents – Whether certain functions of the owners corporation still had to be exercised at properly constituted meetings.

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

REAL PROPERTY - Strata Titles – Common property - alterations to common property constituted an improvement or enhancement to common property so as to require authorisation under s 65A - Held: work constituted repairs and maintenance under s 62 and therefore did not require special resolution - Whether work authorised by the Owners Corporation - where works not explicitly authorised by resolution of owners corporation - whether implicitly authorised - Held: owners corporation had implicitly auth

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

PROCEDURE - where matter referred to referee for report on issues of liability and quantum - where defendants seek to adduce on reference evidence of “without prejudice” communications - where plaintiff seeks order excluding such evidence from the reference - whether Court should determine matters or leave it to referee. Held: Court should intervene. EVIDENCE - whether material protected by without prejudice privilege - whether exceptions in s 131(2) of the (NSW) Evidence Act 1995 apply - Held:

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

[COSTS] - Concurrent proceedings - complex multi-issue, multi-party case - nominal damages - costs of first set of proceedings as finalised

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

[REFEREES/REFERENCES] - Whether explanation from referee required in respect of matters omitted from report - Whether matter should be remitted to referee for further consideration and report - Whether matter should be remitted to provide a party an opportunity to be heard - Nature of discretion to require explanation and/or remit matter to referee

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

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

CIVIL LAW - appeal against Magistrate's decision - recovery of unpaid levies by Owners' Corportion and legal costs - STATUTORY CONSTRUCTION - operation and effect of s 80D of the Strata Schemes Management Act 1996 and Reg 12C of the Strata Schemes Management Regulation 1997 - effect of non-compliance with s 80D - mandatory or directory provisions - position of unit holders and position of third parties - constitution of Annual General Meeting - failure to comply with notice requirements - whethe

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

[REFEREES] - Development of practice of referring the whole of proceedings to retired judicial officers - [REFEREES' REPORTS] - Principles applicable to review of referees' reports in which errors of law are alleged - challenge to conclusions reached upon arhcitects responsibility in respect of building which leaked - whether report should be adopted - [PROCEDURAL FAIRNESS] - whether referee should have provided opportunity to affected party to make submissions in relation to approach taken by r

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

CONTRACTS - general contractual principles - construction and interpretation of contracts - construction of proviso - whether proviso satisfied - held that proviso not satisfied - claim for specific performance dismissed

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

REAL PROPERTY – Strata Titles – Recovery by owners corporation of contributions and expenses under s 80 of the Strata Scheme Management Act 1996 – Whether expenses include legal costs – If so, what legal costs may be recovered – Whether such costs must be claimed in the proceedings for recovery of contributions.

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

CIVIL ENFORCEMENT :- enforcement of fire safety order - exercise of Court's discretion to enforce order where financial hardship - other fire safety measures in place

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

CONTRACTS - property maintenance and caretaking contract for home unit block - owners corporation may terminate for "misconduct" of caretaker - relevant concept of "misconduct" discussed - whether particular episodes and matters amount to "misconduct" - CONTRACTS - right to assign with consent - consent not to be unreasonably withheld - content of qualification discussed - whether withholding of consent to assignment was unreasonable - WORDS AND PHRASES - "misconduct"

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

INTEREST - interest on damages - discretion - compensatory purpose - interest only on amounts paid - interest on costs - form of order.

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

CONTRACT LAW – refurbishment of façade of building premises comprising strata scheme – whether oral agreement by owners corporation to reimburse building developer for cost of refurbishment works – whether terms of relevant conversation created binding agreement – whether strata managing agent representative had authority to bind owners corporation – whether actions of representative ratified by owners corporation - STRATA SCHEMES – powers and functions of owners corporation executive committee

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