The Owners-Strata Plan No. 30791 v Southern Cross Constructions (ACT) Pty Limited (In Liquidation) [2017] NSWSC 1660

The Owners-Strata Plan No. 30791 v Southern Cross Constructions (ACT) Pty Limited (In Liquidation) [2017] NSWSC 1660

The objections based on bias, causation, use of the Wright Drawings and the involvement of Mr Gall did not justify rejecting the referee's report, because the material did not establish actual or apprehended bias, the report did address causation, the defendants had an opportunity to comment on the drawings, and the parties knew of Mr Gall's involvement and could respond to the draft report. However, the report could not presently be adopted because it quantified rectification costs and alternative accommodation costs on the basis that all identified work was recoverable by the Owners Corporation, without separating costs so the court could determine damages if internal walls, including...

Jurisdiction
Australia
Judgment Date
01 December 2017
Procedural Posture
Civil Procedure Ruling on Referral to Referee and Adoption of Referee Report in Property Damage Proceedings / Plaintiff's Notice of Motion Filed on 22 September 2017 Seeking Adoption of the Referee's Report; Opposed by the First to Fifth Defendants
Outcome
The plaintiff's motion to adopt the referee's report was not finally determined; the matter was stood over for submissions on orders to require a supplementary report under UCPR r 20.17(1)(b), and costs were reserved.
Legal Topics
['referral to Referee' 'adoption of Referee Report' 'actual Bias and Apprehended Bias' 'natural Justice' 'common Property' 'alternative Accommodation Costs' 'quantum of Rectification Works']
['civil Procedure' 'strata Schemes' 'property Damage'] ['referral to Referee' 'adoption of Referee Report' 'actual Bias and Apprehended Bias' 'natural Justice' 'common Property' 'alternative Accommodation Costs' 'quantum of Rectification Works']

Case Brief

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Procedural Posture

Civil Procedure Ruling on Referral to Referee and Adoption of Referee Report in Property Damage Proceedings / Plaintiff's Notice of Motion Filed on 22 September 2017 Seeking Adoption of the Referee's Report; Opposed by the First to Fifth Defendants

Legal Issues

  1. 1 ["Whether the referee's report should be rejected for actual bias or reasonable apprehension of bias" 'Whether the referee failed to address what damage was caused by the Works' 'Whether the referee was entitled to rely on the Wright Drawings' 'Whether the involvement of Mr Jeffrey Gall denied the defendants natural justice' "Whether the referee's quantification improperly included damage to individual lots rather than only common property" 'Whether alternative accommodation costs were recoverable and adequately addressed if internal walls were not common property']

Ratio Decidendi

The objections based on bias, causation, use of the Wright Drawings and the involvement of Mr Gall did not justify rejecting the referee's report, because the material did not establish actual or apprehended bias, the report did address causation, the defendants had an opportunity to comment on the drawings, and the parties knew of Mr Gall's involvement and could respond to the draft report. However, the report could not presently be adopted because it quantified rectification costs and alternative accommodation costs on the basis that all identified work was recoverable by the Owners Corporation, without separating costs so the court could determine damages if internal walls, including...

Court Disposition

The plaintiff's motion to adopt the referee's report was not finally determined; the matter was stood over for submissions on orders to require a supplementary report under UCPR r 20.17(1)(b), and costs were reserved.

Orders

  • ['Stand the matter over until 9.30 am on Monday 11 December 2017, or such other date before the end of court term as is fixed with my Associate, to hear submissions on the precise form of the orders that should be made to give effect to this judgment;' "Stand the plaintiff's notice of motion filed on 22 September...