Decisions table

Strata Schemes (Freehold Development Act) 1973 (NSW), Strata Schemes Management Act 1996 (NSW), serviced apartment, strata title apartment, whether lease or licence, construction of lease, validity of lease of common property, whether void, whether executed ultra vires, whether indefeasible, s 42 Real Property Act 1900 (NSW), unauthorised affixing of company seal, requirements of fraud, relation to indoor management rule, extent of indefeasibility, indefeasibility and certain personal covenants,

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

PRACTICE AND PROCEDURE - Costs - Offer of Compromise - Application for indemnity costs where offer more favourable than final

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

APPEAL - appellant gave inconsistent evidence at trial as to whether the part of the ramp on which she slipped was wet or dry - trial judge accepted evidence that the area where the appellant slipped was dry - whether finding of the trial judge was improbable APPEAL - trial judge made adverse credit findings - whether adverse credit findings were unwarranted - whether adverse findings infected the trial judge's finding as to the wet/dry issue or as to damages - whether failure by the trial judge

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

PRACTICE AND PROCEDURE - summary

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

[PRACTICE & PROCEDURE] - application to amend List Statement to include claim of proportionate liability under s 34 Civil Liability Act 2002 - whether action against insurer for indemnity is an apportionable claim for economic loss "arising from a failure to take reasonable care"

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

[ADMINISTRATIVE LAW] - whether by operation of s 69(5) of the Supreme Court Act 1970 and s 65(1) of the Consumer Trader and Tenancy Tribunal Act 2001 (CTTT Act) the jurisdiction of the Supreme Court to grant an order in the nature of certiorari is limited to decisions affected by jurisdictional error - whether primary judge exceeded appellate jurisdiction conferred by s 67 of the CTTT Act - whether primary judge erred in construction of s 18G of the Home Building Act 1989.

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

REAL PROPERTY - Strata and related titles and occupancy - defendant Owners Corporation in breach of Strata Schemes Management Act 1996, s 62(2) since December 2007 - whether plaintiff lot owner has suffered any loss from such statutory breach - assessment of the quantum of any such loss.

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

[CONTEMPT OF COURT] - civil contempt - application that the statement of charge be struck out or quashed - whether statement of charge sets out all the requisite elements of the particular contempt it seeks to allege - whether defendant failed to comply with its obligations under the Court orders - whether contempt alleged deliberate or wilful - whether statement of charge defective.

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

[PROCEDURE] - civil - whether court should order the separate and prior determination of the question of the existence of a duty of care - all relevant factual material

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

Estoppel - estoppel in pais - equitable estoppel - proprietary estoppel - whether an arrangement between parties was a permanent easement or a car park licence for an indefinite period determinable by either party on reasonable notice - whether defendant gave the plaintiff reasonable notice of its intention to terminate - proprietary estoppel not established

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

[PROCEDURE] - interlocutory issues - application to set aside an order that the defendant serve its evidence on the plaintiff's contempt motion - whether statement of charge is defective.

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

PRACTICE AND PROCEDURE: application to amend - respondent consents but insists on costs as a condition of that consent - whether costs can include costs of a s 34 conference - imminent consideration of joining these with related Supreme Court proceedings

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

REAL PROPERTY - STRATA MANAGEMENT - Appeal from Local Court - management and control - rights and obligations of proprietors - where owners corporation breached duty to repair and maintain common property - where lot owner made repairs to common property without permission of owners corporation - whether lot owner entitled to be compensated for expense incurred in undertaking rectification work on common property - expenses not recoverable as a loss attributable to breach of duty - Act does not

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

COSTS - Orders

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

PRACTICE AND PROCEDURE - judgments and orders - power to set aside or vary orders entered -- whether power should be exercised when application is not filed within 14 days of order being entered - Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (3A) - whether Court can dispense with the rule in this case - Civil Procedure Act 2005 (NSW), s 14 - consideration of public policy in all persons being entitled to rely upon orders of court - application to set aside previous orders so much as they af

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

Appeal from Local Court - Magistrate dismissed proceedings even though amount conceded by defendant to be owing - recovery of contributions - recovery of interest - defence to claim under s 80(1) Strata Schemes Management Act.

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

[BUILDING AND CONSTRUCTION] - strata titles - whether development was adapted for commercial use as a tourist holiday or overnight accommodation - whether owners corporation is entitled to the benefit of the statutory warranties implied under the Home Building Act 1989 (NSW) - whether appropriate for a trial judge to determine a common law duty of care owed to an owners corporation - whether defendants owed a common law duty of care. [PROCEDURE] - civil - interlocutory issues - severability of i

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

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.

PRACTICE AND PROCEDURE - transferring Supreme Court proceedings to the Land and Environment Court pursuant to s 149B Civil Procedure Act 2005 (NSW) - Supreme Court proceedings with respect to construction of an easement - Land and Environment Court proceedings with respect to modification of conditions of development consent - where the proceedings concern different legal questions - where outcome of Land and Environment Court proceedings might obviate utility of Supreme Court proceedings - HELD

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.

PRACTICE - discharge of court order requiring counsel to complete and serve a certificate under section 347 of the Legal Profession Act 2004 (NSW) - order inappropriate - meaning of 'filing' for purposes of s347 of Legal Profession Act 2004 (NSW) -

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.