3 Kings Cross Road

PRACTICE AND PROCEDURE – Claim for damages by Owners’ Corporation against builders for defective construction - reference to referee of both liability and quantum – referee reports on liability and quantum – parties agree that reports on liability should be adopted – parties also agreed on quantum of damages in respect of some defects – application by plaintiff that report on quantum should be rejected and application by defendants that report on quantum should be adopted – where referee rejected entirety of plaintiff’s expert evidence on quantum and plaintiff accepts that even if admitted that evidence would not enable assessment of damages – application to lead quantum evidence of a different nature or admissible evidence of the same type rejected by the referee and for further hearing on damages in respect of defects where damages not agreed – relevant considerations – plaintiff’s application refused – referee’s report on quantum adopted – judgment for plaintiff in amount of damages agreed by parties.

[CONTRACT] - Whether the parties agreed that the plaintiff's use of the common property in a high rise apartment block was to be without fee - Whether the signing of and support for the plaintiff's development application constituted a contract between the parties that no fee would be charged for the use of common property. - [MISLEADING & DECEPTIVE CONDUCT] - Whether a letter from the Executive Committee of the defendant contained a representation that no fee would be charged to the plaintiff for the use of the common property - Whether the plaintiff relied upon the alleged representation when it entered into a lease over Retail Space, undertook renovations and opened a retail showroom - Whether the defendant's silence in relation to fees for the use of common property constituted a representation that there would be no fees. - [UNCONSCIONABLE CONDUCT / EQUITABLE ESTOPPEL] - Whether the defendant, in seeking to impose a fee upon the plaintiff for the use of common property, engaged in unconscionable conduct within the meaning of section 51AA of the Trade Practices Act 1974 (Cth) - Whether there was consent to the use of common property and the extent of any consent - Whether there was an expectation in the plaintiff that it would be able to use common property without fee - Whether the defendant is estopped from denying agreement to use the common property without fee. - [TORT - TRESPASS] - Whether the plaintiff's signage on the common property and use of the concrete walls on common property amount to trespass - Whether loss of a commercial fee for use of the common property was the natural and probable consequence of the trespass - Whether injunction should be granted.

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis –defendants made an offer to the plaintiff under r 20.26 of the UCPR, to which r 42.15(2)(b)(i) applied, which the plaintiff rejected – whether the Court should exercise its discretion not to award the defendants indemnity costs as contemplated by r 42.15(2) – plaintiff argued that such discretion should be exercised because the plaintiff’s non-acceptance of the offer was “not plainly unreasonable” – held that this was not sufficient to displace the presumption that indemnity costs should be awarded under r 42.15 of the UCPR as exceptional circumstances are required to do this, and no such circumstances arose in this case