Seiwa Pty Ltd v Owners Strata Plan 35042 [2007] NSWSC 232

Seiwa Pty Ltd v Owners Strata Plan 35042 [2007] NSWSC 232

Although the condition for applying under Order 3 was satisfied because there had not been a satisfactory repeat water test, the order was not self-executing. The defendant had used its best endeavours to comply with Order 1, the failure to obtain a satisfactory repeat water test was likely caused by the test not being conducted substantially in accordance with the original conditions, and the evidence indicated the defendant's repairs were likely to have remedied the defect. The Court therefore declined to substitute a monetary judgment for the mandatory injunction and dismissed the application.

Jurisdiction
Australia
Judgment Date
16 February 2007
Procedural Posture
Application Concerning Enforcement or Variation of Orders for Mandatory Injunction and Substitution of Monetary Judgment / Ex Tempore Judgment on Admissibility of Report and on Oral Application to Vary Orders
Outcome
Application to substitute monetary judgment dismissed.
Legal Topics
['enforcement of Mandatory Injunction' 'substitution of Monetary Judgment' 'discretion Where Liberty to Apply Reserved' 'admissibility of Expert Report' 'costs']
['judgments and Orders' 'civil Procedure' 'equity'] ['enforcement of Mandatory Injunction' 'substitution of Monetary Judgment' 'discretion Where Liberty to Apply Reserved' 'admissibility of Expert Report' 'costs']

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Procedural Posture

Application Concerning Enforcement or Variation of Orders for Mandatory Injunction and Substitution of Monetary Judgment / Ex Tempore Judgment on Admissibility of Report and on Oral Application to Vary Orders

Legal Issues

  1. 1 ["Whether the report of W L Ryan should be admitted although annexed to another person's affidavit." 'Whether, because there had not been a satisfactory repeat water test by 6 February 2007, the mandatory injunction should be dissolved and a further monetary judgment of $250,000 substituted.' "Whether the absence of a satisfactory repeat water test was attributable to fault by the defendant or occurred despite the defendant's best endeavours." 'What costs order should be made on the failed oral application.']

Ratio Decidendi

Although the condition for applying under Order 3 was satisfied because there had not been a satisfactory repeat water test, the order was not self-executing. The defendant had used its best endeavours to comply with Order 1, the failure to obtain a satisfactory repeat water test was likely caused by the test not being conducted substantially in accordance with the original conditions, and the evidence indicated the defendant's repairs were likely to have remedied the defect. The Court therefore declined to substitute a monetary judgment for the mandatory injunction and dismissed the application.

Court Disposition

Application to substitute monetary judgment dismissed.

Orders

  • ['Paragraph 2 under the sub-heading "Opinion" in Mr Ryan\'s report was rejected and the report was otherwise admitted.' "The plaintiff's oral application under Order 3 was dismissed." 'Time for performance of the repeat water test referred to in the orders of 6 November 2006 was extended to 6 March 2007.' 'Liberty...