The Owners – Strata Plan 74602 v Eastmark Holdings Pty Ltd; Eastmark Holdings Pty Ltd v The Owners – Strata Plan 74602 [2016] NSWSC 496

The Owners – Strata Plan 74602 v Eastmark Holdings Pty Ltd; Eastmark Holdings Pty Ltd v The Owners – Strata Plan 74602 [2016] NSWSC 496

The Court determined it would not grant further variation to the Strata Management Statement beyond what was formulated in the original judgment, due to lack of evidence or properly developed submissions. In the levy proceedings, while a specific net amount was calculated, final adjustment regarding post-judgment payments was referred for expert reconciliation. The Owners Corporation failed to substantiate entitlement to any damages against any respondent beyond the judgments already delivered. For expenses under cl 27.3 of the SMS, the Court offered to fix reasonable costs at $100,000 or refer the issue to a costs assessor, given inadequate evidence to justify the sums claimed.

Parties
Plaintiff in 2013/239085; Defendant in 2013/340426: The Owners – Strata Plan No 74602; First Defendant in 2013/239085; First Plaintiff in 2013/340426: Eastmark Holdings Pty Ltd (In Receivership); Second Defendant in 2013/239085; Second Plaintiff in 2013/340426: 1 Denison Street Holdings Pty Ltd (In Receivership); Fourth Defendant in 2013/239085: Strata Associates Pty Limited; Fifth Defendant in 2013/239085: Savills (NSW) Pty Limited
Jurisdiction
Australia
Judgment Date
22 April 2016
Procedural Posture
Equity Technology and Construction List / Post Substantive Judgment; Consequential Matters and Reserved Issues
Outcome
Claim for further relief under Contracts Review Act dismissed; levy proceedings subject to further expert reconciliation; no damages awarded to Owners Corporation; expenses under SMS set at $100,000 or to be referred to costs assessment as elected by parties.
Legal Topics
Variation of Strata Management Statement, Statutory Relief Under Contracts Review Act, Levy Recovery Proceedings, Damages in Strata Context, Costs Assessment Under Strata Management Statements
Equity Building and Construction Strata Law Variation of Strata Management Statement Statutory Relief Under Contracts Review Act Levy Recovery Proceedings Damages in Strata Context Costs Assessment Under Strata Management Statements

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Parties

The Owners – Strata Plan No 74602

Plaintiff in 2013/239085; Defendant in 2013/340426

Eastmark Holdings Pty Ltd (In Receivership)

First Defendant in 2013/239085; First Plaintiff in 2013/340426

1 Denison Street Holdings Pty Ltd (In Receivership)

Second Defendant in 2013/239085; Second Plaintiff in 2013/340426

Strata Associates Pty Limited

Fourth Defendant in 2013/239085

Savills (NSW) Pty Limited

Fifth Defendant in 2013/239085

Procedural Posture

Equity Technology and Construction List / Post Substantive Judgment; Consequential Matters and Reserved Issues

Legal Issues

  1. 1 Whether further relief should be granted under the Contracts Review Act 1980 (NSW) regarding the Strata Management Statement (SMS)
  2. 2 How post-judgment payments and expenses should be reconciled in the Levy Proceedings
  3. 3 Whether the Owners Corporation has established entitlement to damages against Eastmark, Denison Street, or Strata Associates

Ratio Decidendi

The Court determined it would not grant further variation to the Strata Management Statement beyond what was formulated in the original judgment, due to lack of evidence or properly developed submissions. In the levy proceedings, while a specific net amount was calculated, final adjustment regarding post-judgment payments was referred for expert reconciliation. The Owners Corporation failed to substantiate entitlement to any damages against any respondent beyond the judgments already delivered. For expenses under cl 27.3 of the SMS, the Court offered to fix reasonable costs at $100,000 or refer the issue to a costs assessor, given inadequate evidence to justify the sums claimed.

Court Disposition

Claim for further relief under Contracts Review Act dismissed; levy proceedings subject to further expert reconciliation; no damages awarded to Owners Corporation; expenses under SMS set at $100,000 or to be referred to costs assessment as elected by parties.

Orders

  • SMS to be varied only as set out at [39(a) to (e)] of Eastmark’s further submissions of 23 March 2016.
  • Owners Corporation’s further claims for SMS variation dismissed.