The Owners – Strata Plan 49574 v Scorpio Holdings (Aust) Pty Limited & Ors [2018] NSWLEC 54

The Owners – Strata Plan 49574 v Scorpio Holdings (Aust) Pty Limited & Ors [2018] NSWLEC 54

The Second Respondent's delay was unacceptable because the Applicant's reply and the court-ordered mediation were imminent. There was no legitimate nexus between the Applicant's payment of the sums ordered by consent and the Second Respondent's obligation to provide its Statement of Facts and Contentions and Position Paper. A Position Paper outlining the Second Respondent's compensation claim was necessary so the Applicant, the Court and other parties could understand the issues and prepare for mediation consistently with procedural fairness and the objectives of civil procedure. The Court therefore varied the previous timetable and ordered prompt filing and service of the Second...

Jurisdiction
Australia
Judgment Date
18 April 2018
Procedural Posture
Class 4; Application Under S 179 of the Strata Schemes Development Act 2015 Concerning a Strata Renewal Plan / Interlocutory Procedural Ruling on Filing and Service of the Second Respondent's Statement of Facts and Contentions and Position Paper Before Mediation
Outcome
The Court varied the earlier orders and made further directions requiring the Second Respondent to file and serve its Statement of Facts and Contentions and Position Paper by specified times, with liberty to apply.
Legal Topics
['strata Renewal Plan' 'dissenting Owner' 'position Papers Before Mediation' 'security for Costs' 'compensation Value' 'procedural Fairness']
['practice and Procedure' 'strata Schemes' 'costs'] ['strata Renewal Plan' 'dissenting Owner' 'position Papers Before Mediation' 'security for Costs' 'compensation Value' 'procedural Fairness']

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Procedural Posture

Class 4; Application Under S 179 of the Strata Schemes Development Act 2015 Concerning a Strata Renewal Plan / Interlocutory Procedural Ruling on Filing and Service of the Second Respondent's Statement of Facts and Contentions and Position Paper Before Mediation

Legal Issues

  1. 1 ['Whether the Second Respondent should be directed to file and serve its Statement of Facts and Contentions by a specified time after failing to comply with the previous order.' 'Whether the Second Respondent should be required to file and serve a Position Paper outlining its compensation claim before the scheduled mediation.' 'Whether non-payment by the Applicant of amounts ordered by consent provided a legitimate reason for the Second Respondent not providing its Statement of Facts and Contentions or Position Paper.' 'Whether the term "security for costs" was apt in proceedings under the Strata Schemes Development Act 2015 involving a dissenting owner.']

Ratio Decidendi

The Second Respondent's delay was unacceptable because the Applicant's reply and the court-ordered mediation were imminent. There was no legitimate nexus between the Applicant's payment of the sums ordered by consent and the Second Respondent's obligation to provide its Statement of Facts and Contentions and Position Paper. A Position Paper outlining the Second Respondent's compensation claim was necessary so the Applicant, the Court and other parties could understand the issues and prepare for mediation consistently with procedural fairness and the objectives of civil procedure. The Court therefore varied the previous timetable and ordered prompt filing and service of the Second...

Court Disposition

The Court varied the earlier orders and made further directions requiring the Second Respondent to file and serve its Statement of Facts and Contentions and Position Paper by specified times, with liberty to apply.

Orders

  • ["The Court's orders dated 12 April 2018 be varied to the extent that Order 8 shall now be:" '"The Second Respondent is to file and serve its Statement of Facts and Contentions by 4.00pm 17 April 2018".' 'The Second Respondent is to file and serve its Position Paper which is to include an outline of its compensation...