Decisions table

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.

PROCEDURE - CTTT - where application dismissed by Tribunal due to non-attendance of parties at initial hearing - where non-attendance of applicant caused by its solicitor's mistake - where applicant's solicitor sought relisting and offered an explanation for his non-appearance - where Tribunal did not relist the proceedings or respond to the letter - whether denial of procedural fairness - s 28(5)(g) of the Consumer, Trader &Tenancy Tribunal Act 2001 - whether Tribunal had power or jurisdiction

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.

CORPORATIONS - assignment of choses in action - Corporations Act 2001 (Cth), s 477(2)(c) - liquidator of building company assigns company's entitlements against proprietor under a building contract - building contract expressly prohibits assignment of rights under the contract - whether purported assignment by liquidator effective to enable the assignee to sue the proprietor.

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.

Reference out - Discretion to adopt, vary or reject reports of referee- Principles

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.

COSTS:- Class 4 proceedings to enforce Council cease use order discontinued - Respondent probably complied with order after proceedings commenced - no prior notice given to Respondent

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.

EVIDENCE – Expert evidence – where single expert appointed – whether report of another expert should be admitted – where expert reports tendered by annexure to affidavit of a party

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.

PRACTICE & PROCEDURE – Separate question – Whether determination of separate question would dispose of issues in the proceedings – No real saving of time or costs to the parties. - ADMINISTRATIVE LAW – Judicial review of Consumer, Trader and Tenancy Tribunal decision to transfer proceedings to District Court of NSW.

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.

BUILDING AND CONSTRUCTION - owners corporation claim against developers and builder for breach of statutory warranties - assessment of damages for breach - HELD - various breaches of statutory warranty established - were breaches causative of loss – reasonableness of rectification sought - LIMITATIONS - whether developers’ cross-claim against builder was statute barred - HELD - developer’s claim for equitable contribution was not statute barred - APPORTIONMENT of liability as between developers

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.

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.

CORPORATIONS - deregistered company - application for order directing reinstatement of registration - where plaintiff wishes to proceed against company in District Court - whether insurance responsive so as to remove need for reinstatement - whether limitation defences would defeat plaintiff - appropriate to reinstate where arguable case maintainable

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.