THE OWNERS, SP 75903 v DIX & ANOR [2011] NSWSC 245

THE OWNERS, SP 75903 v DIX & ANOR [2011] NSWSC 245

It was appropriate to determine the separate question because the parties agreed the facts, supported the application, and determination could substantially reduce the issues, cost and time. On the proper construction of clause 57BC(5) of the Home Building Regulation 1997, the phrase "the space includes accommodation only intended for vehicles" excludes a space from being a storey where part of that space is adapted or set aside only for vehicle accommodation; it does not require the whole space to be dedicated to vehicles. The Lower Ground floor contained car spaces and therefore was excluded from the calculation, so the building had a rise in storeys of 3, not more than 3.

Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Notice of Motion for Determination of a Separate Question / Determination of Whether to Order and Answer a Separate Question Under UCPR 28.2
Outcome
Separate question ordered to be determined separately and answered in favour of the plaintiff's construction; the building had a rise in storeys of 3 within clause 57BC of the Home Building Regulation 1997.
Legal Topics
['home Building Regulation 1997 Cl 57 Bc' 'exemptions From Home Warranty Insurance for Multi Storey Buildings' 'meaning of Rise in Storeys and Storey' 'separate Questions Under UCPR 28.2']
['statutory Construction' 'home Building' 'civil Procedure'] ['home Building Regulation 1997 Cl 57 Bc' 'exemptions From Home Warranty Insurance for Multi Storey Buildings' 'meaning of Rise in Storeys and Storey' 'separate Questions Under UCPR 28.2']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion for Determination of a Separate Question / Determination of Whether to Order and Answer a Separate Question Under UCPR 28.2

Legal Issues

  1. 1 ['Whether the Court should exercise its power under UCPR 28.2 to determine a separate question.' 'Whether, as at January 2004, the development at 228-232 Condamine Street, Manly Vale had a rise in storeys of more than 3 for the purposes of clause 57BC of the Home Building Regulation 1997 and Part 6 of the Home Building Act 1989 (NSW).' 'Whether the Lower Ground floor was excluded from being a storey because it included accommodation only intended for vehicles within clause 57BC(5) of the Home Building Regulation 1997.']

Ratio Decidendi

It was appropriate to determine the separate question because the parties agreed the facts, supported the application, and determination could substantially reduce the issues, cost and time. On the proper construction of clause 57BC(5) of the Home Building Regulation 1997, the phrase "the space includes accommodation only intended for vehicles" excludes a space from being a storey where part of that space is adapted or set aside only for vehicle accommodation; it does not require the whole space to be dedicated to vehicles. The Lower Ground floor contained car spaces and therefore was excluded from the calculation, so the building had a rise in storeys of 3, not more than 3.

Court Disposition

Separate question ordered to be determined separately and answered in favour of the plaintiff's construction; the building had a rise in storeys of 3 within clause 57BC of the Home Building Regulation 1997.

Orders

  • ['The separate question set out in paragraph 1 of the Notice of Motion filed on 16 July 2010 is ordered to be determined separately in accordance with UCPR 28.2.' "The residential and commercial building constructed at 228-232 Condamine Street, Manly Vale, as represented in the drawings referred to in the...