Decisions table

PRACTICE & PROCEDURE – Application by first and fifth defendants to strike out plaintiff’s amended statement of claim – Application by first and fifth defendants that proceedings be summarily dismissed – Plaintiff’s causes of action allegedly statute barred – Section 14(1)(b) Limitation Act 1969 (NSW) – Whether limitation question should be decided in interlocutory proceedings - TORT – First defendant engaged to design and construct works of refurbishment on building – Fifth defendant engaged to

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

Special levy under s76(4) of Strata Schemes Management Act - Service of notice of imposition of levy under s78 Strata Schemes Management Act - Indemnity costs

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

REAL PROPERTY – strata and related titles and occupancy – charge given by individual lot holders over their lots – nature of interest of lot holder in common property – whether charge extends to lot holders interest in common property – CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings – application for extension of caveat – whether to be considered as analogous to application for interlocutory injunction, or as analogous to application for final injunction – appropr

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

Disqualification for apprehended bias - test that fair-minded lay observer might reasonably apprehend the judge might not bring impartial mind to decision - observations which in isolation expressed views on credibility without opportunity for submissions - hypothetical observer is informed, and does not look at matters in isolation - taking into account circumstances in which observations made and totality of what judge said, test not satisfied. D

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

EVIDENCE - Admissibility and Relevancy - Whether the tender of an agreement to the terms of a deed of settlement and release agreed to after a mediation is governed by the Civil Procedure Act 2005, s 29(2) or the Supreme Court Act 1970, s 110P(4) and s 110P(5) - Whether the Civil Procedure Act 2005, Sch 6, cl 5(1) or cl 10(a) applies - Whether agreement on the deed occurred in the course of the follow-up of the mediation and hence during the mediation session as defined in s 110P(1) - Whether so

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

Appeal - Costs Review Panel - cross claim, solicitor's hourly rates, disbursements

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

PROCEDURE - Amendment - late amendment of pleading during trial - whether triable case on proposed new particular - application rejected

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

EVIDENCE - expert evidence - expert "safety consultant" - opinions no more than common sense, or speculation not based on training experience or study - report rejected

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

Development Consent :- consent to development application for strata title unit - work undertaken on common property - whether consent of owners' corporation required - whether development application related to work on common property - whether consent invalid - discretion

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

Notice of Motion seeking Mareva order in relation to commercial real estate - general principles restated - Question of characterisation of claim as a claim for resulting or constructive trust

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

Challenge to decision on appeal from adjudication - new evidence - fresh hearing or appeal - statutory construction - power to order payment of costs when appeal is dismissed because of specified reasons - meaning of "lacking in substance" - the making of the order is discretionary - extension of time.

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

PROPERTY- Strata plans - Strata Management Statement provided that "owners" of commercial lots in strata building must not use lots as fast food outlets - Lots used by lessees as fast food outlets - Proper construction of Statement - Whether obligation in Statement imposed upon lessees or proprietors only - Whether lessees in breach of covenant contained in s 28W(2)(b) of Strata Schemes (Freehold Development) Act 1973 - PROCEDURE - Whether leave should be granted to raise point not taken in cour

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

PROCEDURE - Application of Civil Liability Act 2002 as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 to re-trial. - LIABILITY AND DAMAGES - Appellant unsuccessfully sought damages when he caught his foot in raised concrete lip and fell while carrying a ladder in a driveway between two blocks of flats - Whether risk reasonably foreseeable - duty of care of occupier to invitee on domestic site for occupier's benefit as compared to highway authority's duty of care to p

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

NEGLIGENCE - Personal injury - Occupiers' liability - Breach of duty of care - Nature and extent of owners corporations' statutory duties of maintenance and repair - Resident injured when glass in front door of building shattered over his arm - Whether owners corporation of building under a duty to inspect and replace glass in accordance with current safety standards - Whether s 62 of the Strata Schemes Management Act 1996 imposed on owners' corporation duty to inspect common property over and a

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

NEGLIGENCE - isolated step - obvious hazard - everyday risk - failure to alert pedestrians - reasonable care for the safety of an invitee to commercial premises - Wyong Shire v Shirt calculus - temporary glare - distraction of injured person - causation.(ND)

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

PROCEDURE - costs - where defendant files submitting appearance after claims in summons amended - whether defendant's costs

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

PRACTICE AND PROCEDURE - interlocutory application - where plaintiff purportedly held extraordinary meeting appointing new strata managing agent - where plaintiff sought interlocutory orders against former strata managing agent providing for delivery up of documents and payment of trust moneys to it - where plaintiff gave notice under s 105 of the Strata Schemes Management Act - whether extraordinary general meeting validly called - balance of convenience - where alternative dispute mechanism av

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

Contract - whether void for illegality - Strata Schemes Management Act 1996 - "initial period" when developer controls owners corporation prior to lot owners having control - s 113(1)(b) prohibits owners corporation from incurring a debt for an amount exceeding the amount then available for repayment of the debt from administrative fund or sinking fund - owners corporation entered into caretaker agreement under which fee was payable - incurred a debt - nothing in funds - whether prohibition on e

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

PROCEDURE - costs - no question of principle

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

Practice & Procedure - Standing of owners corporation to sue in negligence with respect to common property - Meaning of section 227 of the Strata Scheme Management Act 1996 - Nature of an owners corporation's statutory agency

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

REAL PROPERTY - Crown lands - licence granted by Crown over site of jetty and slipway on bank of tidal river - nature of rights created - whether jetty and slipway are fixtures - effect of provisions of licence declaring them to be "property of" licensee but precluding alteration, removal and destruction while licence subsists - common law rights of public in relation to tidal foreshore - attenuation thereof by statute - TORTS - trespass to land - whether contractual licensee without right of ex

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

STRATA SCHEME - caretaker agreement - meaning of "incur a debt" - whether debt incurred in initial period without available funds - whether agreement illegal - UNENFORCEABILITY - principles - scope and purpose of statutory prohibition - whether recovery of debt only consequence of illegality - whether unenforceability a legal consequence - public policy

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

Appeal from the Consumer Trader and Tenancy Tribunal's determination as to validity of by-law - Factual issues - No error of law

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

EVIDENCE - admissibility - correspondence on settlement negotiations - prima facie inadmissible - whether admissible because of need to "control the conduct of a proceeding" or under exception for "deliberate abuse of power"

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

COSTS of appeal

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

ASSESSMENT OF DAMAGES - injury to ankle - effect on employment and ability to play sport - whether damages awarded for non-economic loss, future economic loss, future domestic assistance and loss of future superannuation were manifestly excessive - meaning of 'most extreme case'.

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

Appeal

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

Contracts: Agreement to compromise part of a claim in the Consumer, Trader & Tenancy Tribunal of NSW. Appeal from Tribunal as a matter of law. Held that agreement not as extensive as found by Tribunal. Appeal allowed and matter remitted to Tribunal for further consideration.

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

Development Application :- Class 1 proceedings Industrial Strata building Appeal of council's refusal of a development application of one owner in the building Owners' corporation's concern that application involved some common property Consent of owner Dismissal of proceedings DEVELOPMENT APPLICATION: Class 4 proceedings Owners' corporation's role in development application Whether lack of owners' corporation's consent to the application prevents the court upholding an appeal in relation to cou

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 was required to up-grade an exhaust ventilation system to service the needs of a lot owner - Whether an owners corporation could refuse a lot owner access to common property under its power of management and control on the basis that the exhaust ventilation system was overloaded - Whether the exercise of that power was a fraud on the minority, a breach of statutory duty or a breach of by-laws - Whether damage

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

ADMINISTRATIVE LAW - TRIBUNAL - JURISDICTIONAL OR FACTUAL ERROR - ESTOPPEL - PROCEDURAL FAIRNESS - CONSTRUCTION OF CLAUSES IN STATUTORY INDEMNITY SCHEME - SEPARATE QUESTIONS DIRECTED

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

Compensation :- acquisition of frontage strip from land held in strata scheme and developed by existing industrial development

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

Appeal - Small Claims Division of Local Court - damage to electrical appliances - power surge

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

Practice & Procedure- proper parties. Whether a lot holder in a strata plan is a necessary party to a claim in negligence against the builder of the building comprising the Strata Plan. Consideration of section 227 of the Strata Scheme Management Act 1996 and the powers of an Owners Corporation.

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

Appeal

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

Appeal from interim

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

CONTRACT - REAL PROPERTY - STRATA TITLES - Agreement for caretaker services to a large complex of strata units - Whether amounted to delegation of functions of owners corporation in breach of Strata Schemes Management Act 1996

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

Appeal

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

REAL PROPERTY - strata and related titles and occupancy - air conditioning unit servicing one lot - some components within lot others within common property - District Court action by lot owner against persons allegedly responsible for defects in air conditioning system - need for owners corporation as party to proceedings - CORPORATIONS - bodies corporate other than companies and associations - owners corporation constituted by strata titles legislation - applicability of "proper plaintiff rule

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

Real Property - Easements. Application under section 88K of the Conveyancing Act 1919 for a drainage easement. No Council approval for development to be serviced by the proposed easement. Whether easement was necessary. Held it was not. Discussion of the need for particularity in respect of the proposed use or development.

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

Equity - appeal - strata plan - body corporate - dividing wall - water penetration - responsibility for rectification - common property - Strata Titles Board - finding of fact - whether trial judge can decide a question that did not appear in the stated case - no evidence - Coulton v Holcombe - notice of contention - case stated technique

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

Equity - property law - planning and environment - application for leave to appeal - development application lodged by lot owner - rejection of development application by council - strata scheme - body corporate - owners corporation - whether body corporate can refuse consent to development application - whether body corporate is included in definition of 'owner' - regulation 46(1)(b) EPA Act - whether development application concerned common property - Whether Halpin's case should be reconsider

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

Contracts. Construction and interpretation of contracts. Agreement for caretaker services to a large complex of strata units. Whether on its construction the agreement delegated functions of the Owners Corporation is in breach of s13(3) of Strata Schemes Management Act 1996. Held that it did not constitute a delegation of functions.

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

Administrative law - summons seeking declarations - construction of residential home units - alleged defects in building work - claim by body corporate under insurance scheme - requirements imposed by scheme in considering claim - whether compliance with those requirements - if not, whether declarations should be made - consideration of utility.

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

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.

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

Compulsory Acquisition of Land :- acquisition of part of common property of strata scheme-whether lessees of three lots entitled to claim compensation by way of disturbance-application for joinder as claimants

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

NEGLIGENCE - causation - failure to provide additional handrails on set of stairs - different lighting levels - need for nosings to mark the edge of a step - NEGLIGENCE - contributory negligence - causation - apportionment of responsibility and damages

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

[EASEMENTS] - Rights of carriage way - Application for extinguishment of rights of way granted in 1956 - Whether rights of way should be deemed obsolete pursuant to s 89 of the Conveyancing Act 1919 (NSW) - Grant to Lot A with the intention to consolidate Lot A with a Lot adjacent to it - Whether intended that adjacent Lot have the benefit of the rights of way.

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

CONTRACT [90] - General contractual principles - Illegal and void contracts - Contracts illegal by statute - General principles - Nature of statutory prohibition - Entry into contract prohibited - ESTOPPEL [35] - Estoppel in pais - Matters against which estoppel does not prevail - Statutory provisions - Statute representing social policy for protection of section of public - REAL PROPERTY [440] - Strata titles - Body corporate - Management and control - Managing agent must be licensed - Whether

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

Appeal from the Local Court on a question of law - no question of principle

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