Golden Mile Realty Pty Ltd v Owners Strata Plan 39734 & ors; Gilbey Burgess Strata Management Pty Ltd v Golden Mile Realty Pty Ltd & ors; Gilbey Burgess Strata Management Pty Ltd v Conway-Thau & Associates Pty Ltd [2005] NSWSC 829

Golden Mile Realty Pty Ltd v Owners Strata Plan 39734 & ors; Gilbey Burgess Strata Management Pty Ltd v Golden Mile Realty Pty Ltd & ors; Gilbey Burgess Strata Management Pty Ltd v Conway-Thau & Associates Pty Ltd [2005] NSWSC 829

Golden Mile failed to show that any of its nine proposed grounds raised an error of law rather than factual complaints or matters open on the evidence, so its attempted Local Court appeal had no reasonable prospect of success and the Registrar was correct to dismiss it. Gilbey Burgess failed to show sufficient doubt or substantial injustice in the Local Court costs orders because the practical event was the plaintiffs' failure against all defendants, the Magistrate's discretion did not miscarry, and the evidence did not justify shifting Gilbey Burgess' third party costs to Bonacci Rickard.

Jurisdiction
Australia
Judgment Date
19 August 2005
Procedural Posture
Review of a Registrar's Decision and Applications for Leave to Appeal Against Local Court Costs Orders / Supreme Court of New South Wales Common Law Division Determination of Notice of Motion and Ordinary Summonses for Leave to Appeal
Outcome
Golden Mile's review motion dismissed with costs; leave to appeal refused in proceedings 13913/04 and 13914/04 and the ordinary summonses dismissed with costs.
Legal Topics
["review of Registrar's Order" 'appeal From Local Court Under Local Courts (civil Claims) Act 1970 (nsw)' 'leave to Appeal' 'summary Dismissal' 'pure Economic Loss and Duty of Care' 'vulnerability and Control' 'third Party Costs']
['civil Procedure' 'costs' 'negligence' 'strata Management' 'economic Loss'] ["review of Registrar's Order" 'appeal From Local Court Under Local Courts (civil Claims) Act 1970 (nsw)' 'leave to Appeal' 'summary Dismissal' 'pure Economic Loss and Duty of Care' 'vulnerability and Control' 'third Party Costs']

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Procedural Posture

Review of a Registrar's Decision and Applications for Leave to Appeal Against Local Court Costs Orders / Supreme Court of New South Wales Common Law Division Determination of Notice of Motion and Ordinary Summonses for Leave to Appeal

Legal Issues

  1. 1 ["Whether Golden Mile's review application should discharge the Registrar's order dismissing its attempted appeal from the Local Court judgment." "Whether Golden Mile's stated grounds identified an error of law sufficient for an appeal under section 69 of the Local Courts (Civil Claims) Act 1970 (NSW)." 'Whether the Local Court Magistrate erred in finding no duty of care for pure economic loss by reference to vulnerability and control.' 'Whether Gilbey Burgess should be granted leave to appeal from Local Court costs orders concerning costs of third party proceedings.' "Whether the Magistrate's costs discretion miscarried by ordering Golden Mile to pay the costs of the successful defendants and making no separate costs order on the third party proceedings."]

Ratio Decidendi

Golden Mile failed to show that any of its nine proposed grounds raised an error of law rather than factual complaints or matters open on the evidence, so its attempted Local Court appeal had no reasonable prospect of success and the Registrar was correct to dismiss it. Gilbey Burgess failed to show sufficient doubt or substantial injustice in the Local Court costs orders because the practical event was the plaintiffs' failure against all defendants, the Magistrate's discretion did not miscarry, and the evidence did not justify shifting Gilbey Burgess' third party costs to Bonacci Rickard.

Court Disposition

Golden Mile's review motion dismissed with costs; leave to appeal refused in proceedings 13913/04 and 13914/04 and the ordinary summonses dismissed with costs.

Orders

  • ['Proceedings 13073/04: The Notice of Motion filed on 30 December 2004 is dismissed with costs.' 'Proceedings 13913/04: Leave to appeal is refused. The Ordinary Summons filed in that behalf is dismissed with costs.' 'Proceedings 13914/04: Leave to appeal is refused. The Ordinary Summons filed in that behalf is...