The Owners – Strata Plan No 80453 v Walsh [2015] NSWSC 931

The Owners – Strata Plan No 80453 v Walsh [2015] NSWSC 931

It was inappropriate and too late in the proceedings to order a separate determination of the question regarding damage suffered by the plaintiff, because the relevant legal issues are properly resolved at trial and the proposed question would not address all capacities in which the plaintiff may sue. The matter's complexity and progression toward hearing, and the risk of appeal, also militated against granting the application.

Parties
Plaintiff/respondent: The Owners – Strata Plan No 80453; First Defendant: David John Walsh; Second Defendant/applicant: Milano Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
10 July 2015
Procedural Posture
Application for Separate Determination of Question / Interlocutory Application – Refusal of Separate Question Determination
Outcome
Application for separate question determination refused
Legal Topics
Separate Determination of Questions, Owners Corporation Standing, Building Defects Proceedings
Civil Procedure Separate Determination of Questions Owners Corporation Standing Building Defects Proceedings

Case Brief

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Parties

The Owners – Strata Plan No 80453

Plaintiff/respondent

David John Walsh

First Defendant

Milano Investments Pty Ltd

Second Defendant/applicant

Procedural Posture

Application for Separate Determination of Question / Interlocutory Application – Refusal of Separate Question Determination

Legal Issues

  1. 1 Whether a separate question should be determined regarding the plaintiff suffering damage
  2. 2 Whether the owners corporation as plaintiff has suffered damage where it paid nothing to acquire common property
  3. 3 Whether the High Court decision in Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 applies to bar the plaintiff’s claim

Ratio Decidendi

It was inappropriate and too late in the proceedings to order a separate determination of the question regarding damage suffered by the plaintiff, because the relevant legal issues are properly resolved at trial and the proposed question would not address all capacities in which the plaintiff may sue. The matter's complexity and progression toward hearing, and the risk of appeal, also militated against granting the application.

Court Disposition

Application for separate question determination refused

Orders

  • The second defendant's notice of motion dated 22 May 2015 be dismissed with costs.
  • Plaintiff granted leave to further amend its list statement.