Ericon Buidings Pty Limited v The Owners Strata Plan No 96597 [2020] NSWCATAP 265

Ericon Buidings Pty Limited v The Owners Strata Plan No 96597 [2020] NSWCATAP 265

The Principal Member's orders were conventional pre-trial directions concerning a proposed transfer application and did not constitute an ancillary decision or a refusal to enter the appellants' proposed judgment. They were interlocutory, so leave to appeal was required. Because the directions did not shut the appellants out from later arguing that judgment should be entered, no substantial miscarriage of justice was shown and no error of law was established. In any event, the proposed orders were not a tender because no actual payment was made into court or to the respondent, so the Principal Member retained a discretion whether to make the proposed orders.

Jurisdiction
Australia
Judgment Date
11 December 2020
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From the Consumer and Commercial Division in a Home Building Proceeding / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed; costs to be determined after further submissions.
Legal Topics
['internal Appeal' 'interlocutory Decision' 'ancillary Decision' 'leave to Appeal' 'consent Judgment' 'tender' 'transfer to Supreme Court of New South Wales' 'work Order' 'costs']
['administrative Law' 'home Building' 'civil Procedure' 'strata'] ['internal Appeal' 'interlocutory Decision' 'ancillary Decision' 'leave to Appeal' 'consent Judgment' 'tender' 'transfer to Supreme Court of New South Wales' 'work Order' 'costs']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From the Consumer and Commercial Division in a Home Building Proceeding / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ["Whether the Principal Member's directions were an ancillary decision appealable as of right or an interlocutory decision requiring leave to appeal." 'Whether the directions amounted to a refusal to enter judgment for the owners corporation in the sum of $500,000 and costs.' "Whether the Tribunal had no discretion, or miscarried in discretion, in not making the appellants' proposed money order." 'Whether the proposed orders amounted to a tender.' 'Whether a work order under the Home Building Act 1989 could exceed $500,000.' 'Whether costs submissions should be received after dismissal of the appeal.']

Ratio Decidendi

The Principal Member's orders were conventional pre-trial directions concerning a proposed transfer application and did not constitute an ancillary decision or a refusal to enter the appellants' proposed judgment. They were interlocutory, so leave to appeal was required. Because the directions did not shut the appellants out from later arguing that judgment should be entered, no substantial miscarriage of justice was shown and no error of law was established. In any event, the proposed orders were not a tender because no actual payment was made into court or to the respondent, so the Principal Member retained a discretion whether to make the proposed orders.

Court Disposition

Leave to appeal refused; appeal dismissed; costs to be determined after further submissions.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "The appellants are to provide to the Appeal Panel and to the respondent, any submissions in response to the respondent's cost submissions dated 6 November 2020, by 17 December 2020." "The respondent is to provide to the Appeal Panel and to the appellants,...