The Owners SP No 62327 v Brodyn P/L t/as Time Cost & Quality [2015] NSWDC 50

The Owners SP No 62327 v Brodyn P/L t/as Time Cost & Quality [2015] NSWDC 50

Although the proceedings were commenced without prior compliance with s 80D of the Strata Schemes Management Act 1996, subsequent ratification by the owners corporation cured the defect. There is no basis to strike out or dismiss the proceedings as an abuse of process, as the ratifications were timely, effective, and resulted in no relevant prejudice to the applicant defendant.

Parties
Plaintiff/respondent: The Owners – Strata Plan No 62327; Defendant/applicant: Brodyn Pty Limited t/as Time Cost & Quality
Jurisdiction
Australia
Judgment Date
24 April 2015
Procedural Posture
Civil / Interlocutory (motion to Strike Out/dismiss for Abuse of Process)
Outcome
Applicant defendant's motion dismissed; costs to respondent plaintiff
Legal Topics
Abuse of Process, Non Compliance With Statutory Procedure, Ratification Under Strata Schemes Management Act 1996
Practice and Procedure Strata Law Abuse of Process Non Compliance With Statutory Procedure Ratification Under Strata Schemes Management Act 1996

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Parties

The Owners – Strata Plan No 62327

Plaintiff/respondent

Brodyn Pty Limited t/as Time Cost & Quality

Defendant/applicant

Procedural Posture

Civil / Interlocutory (motion to Strike Out/dismiss for Abuse of Process)

Legal Issues

  1. 1 Whether non-compliance with s 80D of the Strata Schemes Management Act 1996 before commencing proceedings, subsequently ratified, amounts to an abuse of process justifying dismissal

Ratio Decidendi

Although the proceedings were commenced without prior compliance with s 80D of the Strata Schemes Management Act 1996, subsequent ratification by the owners corporation cured the defect. There is no basis to strike out or dismiss the proceedings as an abuse of process, as the ratifications were timely, effective, and resulted in no relevant prejudice to the applicant defendant.

Court Disposition

Applicant defendant's motion dismissed; costs to respondent plaintiff

Orders

  • The applicant defendant's motion filed on 19 September 2013 is dismissed;
  • The applicant defendant is to pay the respondent plaintiff's costs on the ordinary basis unless otherwise ordered;