| | | | | Issue 4 of 2014 November 2014
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| This issue provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal (NCAT). This bulletin, and other resources, is available on the NCAT website.
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| | | Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 8 October 2014 – French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ
Summary: An appeal from a decision of the NSW Court of Appeal. The High Court held that the builder of a strata-titled apartment complex, Brookfield Muliplex, did not owe a duty of care to the Owners Corporation to avoid causing economic loss as a result of latent defects in the common property. This overturned the decision of the Court of Appeal. Gageler J expressed the question on appeal in the following terms:
[170] …whether the builder of a strata development should be recognised to have a duty to exercise reasonable care, in executing the building work undertaken pursuant to a contract with the developer, to avoid specified loss to the owners corporation, which is the body corporation brought into existence on registration of the strata plan, as the legal owner of the common property, with an ongoing statutory responsibility for keeping the common property in a good state of repair.
Each of the four judgments delivered considered in detail the design and construct contract and standard form contract of sale to purchasers. The authority of Bryan v Maloney [1995] 182 CLR 609, which found a duty of care for recovery of pure economic loss between a builder and subsequent owner of residential premises because sufficient proximity existed between the two, was distinguished from the present case: see, French CJ at [21]-[30], Hayne and Kiefel JJ at [49]-[51] and [60], Crennan, Bell and Keane JJ at [138]-[140] and Gageler J at [179]-[186]. French CJ concluded, at [33]:
The responsibility assumed by Brookfield with respect to Chelsea, as initial owner of the lots, was defined in detail by the design and construct contact. Chelsea cannot be taken to have relied upon any responsibility on the part of Brookfield, and Brookfield assumed none, in relation to pure economic loss flowing from latent effects extending beyond the limits of the responsibility imposed on it by the contract. The statutory relationship between the Corporation and Chelsea as first owner meant that there was no duty of care owed to the Corporation as a proxy for Chelsea.
The orders proposed by French CJ were adopted as the orders of the Court.
Link: Read the decision on the AustLII website.
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| | Federal Court of Australia (Full Court) |
| Shannon v Commonwealth Bank of Australia [2014] FCAFC 108
29 August 2014 – Logan, Flick and Perry JJ
Summary: Appeal to the Full Court on the basis that the refusal to grant an adjournment was a denial of procedural fairness, in that the appellant was not afforded a “proper” opportunity to instruct solicitors. Noting that the appeal actually related to an interlocutory decision, the Full Court stated that on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result: see [18].
In relation to appeals to correct errors in the exercise of discretion, such as refusal to grant an adjournment, the Full Court said, at [23]:
The kinds of errors referred to in House v R are where the primary judge acts on a wrong principle, allows extraneous or irrelevant matters to guide or affect him or her, mistakes the facts, or fails to take into account a material consideration. Where there is no identifiable error of fact or law, the appellant court must consider that the decision stands outside the limits of a sound discretionary judgment before it will intervene: Norbis v Norbis (1986) 161 CLR 513 at 520 (Mason and Deane JJ). In any event, the Court will not intervene merely because it would have exercised the discretion differently.
Link: Read the decision on the AustLII website.
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| | | Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378
10 November 2014 – Barrett and Leeming JJA, White J
Summary: Pursuant to the Administrative Decisions Tribunal Act 1997 (NSW), s 19(1), this is an appeal from a decision of the Appeal Panel of NCAT dismissing an internal appeal against a decision to affirm the assessment of duties owed under the Land Tax Management Act 1956 (NSW). The appellant at first instance failed to establish that the primary production activity exception applied.
In dismissing the appeal, the Court helpfully considered the distinction between a question of law and a question of fact and said, in general, at [7]:
There is no satisfactory test of universal application to define a question of law: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394. One reason is that the meaning of “question of law” is dependent upon context: see eg Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 at [25]-[44] especially at [37].
White J, with whom the Court agreed, correctly set out at [22] that “as the notice of appeal to the Appeal Panel [of NCAT] purported to be an appeal on questions of law, it was necessary for the notice of appeal to identify precisely the particular question or questions of law”. His Honour concluded, at [23], that “the notice of appeal to the Appeal Panel did not do this. It contained challenges to the findings of fact.” The individual grounds are referred to by the Court at [22]-[29]. The appeal was dismissed by the Appeal Panel.
An appeal to the Court of Appeal from a decision of the NCAT Appeal Panel can only be on a question of law: [30]. Referring to ground 2 the Court said:
Whether the dominant use of the land was for primary production activities for the relevant years was a question of fact. The notice of appeal merely challenged the finding of fact without specifying any grounds for such a challenge.
The Court went on to dismiss the appeal by saying at [58]:
In my view the Appeal Panel could have dismissed the appeal to it on narrower grounds than it did. In substance, the Appeal Panel reviewed the Judicial Member’s decision on the merits although leave to do so was not pressed. In so far as the questions raised on the appeal to this Court are questions of law, no error has been shown.
Link: Read the decision on the NSW Caselaw website.
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Gillies v District Court of New South Wales [2014] NSWCA 357
26 September 2014 – Meagher and Barrett JJA, Tobias AJA
Summary: Application for a summary dismissal and/or strike out of the applicant’s summons. The Court found that the summons in question failed to disclose any reasonable cause of action and was manifestly groundless. The applicant did not appear at the hearing and the Court implied an application for adjournment from the applicant’s non-appearance. Considering the material before their Honours, including the applicant’s summons, the Court determined not to grant an adjournment and to dismiss the summons. Referring to Kyriakou v Long [2014] NSWCA 308 and Roskott v Commonwealth Bank of Australia [2014] NSWCA 341, the Court justified proceeding in the circumstances in the absence of the applicant on the grounds that there was, at [5], “no reasonable or realistic prospects of success and as a consequence thereof there was no utility in granting the applicant an adjournment otherwise delaying the inevitable”.
Link: Read the decision on the NSW Caselaw website.
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| Roskott v Commonwealth Bank of Australia [2014] NSWCA 341
25 September 2014 – Basten and Meagher JJA
Summary: Application for adjournment by unrepresented litigant made by email to Registry a day before the hearing. The Court determined to refuse the adjournment on the basis that when an extension of time is sought but the application is without merit and would be refused or dismissed it is appropriate for the extension application to be refused. The Court also noted the opportunity for the applicant to apply for a set aside or variation order.
Link: Read the decision on the NSW Caselaw website.
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| Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141
30 April 2014 – Beazley P, Ward and Gleeson JJA
Summary: Application for leave to appeal from a decision of Sheahan J refusing leave pursuant to Uniform Civil Procedure Rule 2005 (NSW) r 31.19 to rely upon expert evidence in judicial review proceedings. At [14] their Honours helpfully set out “well established” principles applying to a challenge against a discretionary interlocutory decision on a matter of practice and procedure, noting an application “faces a difficult task”.
Referring to Heydon JA in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] the Court set out that:
To succeed, it was necessary for an applicant challenging such a decision to establish that the decision maker:
(a) Made an error of legal principle;
(b) Made a material error of fact;
(c) Took into account some irrelevant consideration;
(d) Failed to take into account, or to give sufficient weight to, some relevant matter; or
(e) Arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
The Court went on to say that, at [15]:
It is only appropriate to grant leave where there is an issue of principle, a question of general importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is not sufficient merely to show that the trial judge was arguably wrong: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].
Leave to appeal was refused with costs.
Link: Read the decision on the NSW Caselaw website.
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| Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105
7 April 2014 – Bathurst CJ, Beasley P and Tobias AJA
Summary: Appeal from a decision of the CJ of the Land and Environment Court overturning a decision of the Planning Assessment Commission to approve an application for a major infrastructure project. The reasons for decision are particularly important for the statement that the general principle that “where a court determines a matter on a basis that was not in issue or argued in the proceedings, there will have been a denial of procedural fairness” is qualified by the reasoning that “an appellate court will not order a new trial where the inevitable result would be that the same order would be made on a retrial” (at [41]-[42]). Two further issues are important, (1) relating to procedural fairness and the onus of adducing evidence:
[112] The essential point, however, is that if evidence is required to meet an issue, the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence. It is not sufficient to expect that the underlying basis of an opinion would be revealed in cross-examination... A party's failure to adduce relevant evidence does not give rise to a failure to afford procedural fairness.
And (2) in relation to mandatory considerations that can be characterised as a ‘focal point’ or ‘fundamental element’ which if not given adequate weight might raise a question of law. The Court said:
[196] … in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker to accord such weight to those considerations as the decision-maker considers appropriate. However, a Court may set aside an administrative decision where the decision-maker fails to give adequate weight to a relevant factor of great importance.
The Court went on to consider a number of important authorities on the matter and concluded:
[226] These cases do not state an inflexible legal rule of construction as to the weight to be accorded to all statutory provisions which require a particular matter to be considered or taken into account by a decision-maker. The result in each case was dependant upon the terms of the legislation and the particular circumstances in which the legislation was applied.
The appeal was dismissed.
Link: Read the decision on the NSW Caselaw website.
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| | | The Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067
11 August 2014 – Ball J
Summary: Suit by the owners corporation of a strata development against the builder for breaches of the warranties implied by s 18B of the Home Building Act 1989 (NSW). His Honour sets out a number of relevant general legal principles in relation to damages in home building matters:
[42] “… a person who suffers loss as a consequence of a breach of contract is required to act reasonably in relation to that loss”.
[43] “…a plaintiff whose property is damaged or defective as a consequence of the defendant's breach is generally entitled to recover the costs of reinstating the property so that it corresponds to the contractual promise”.
[44] “…the owner must give the builder a reasonable opportunity to rectify any defects.”
Furnishing these principles, his Honour explained that “reasonable depends on all the circumstances of the particular case” (at [45]) and that “it is for the defendant to prove that the plaintiff has acted unreasonably” (at [46]).
Link: Read the decision on the NSW Caselaw website.
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