//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWCA 237
procedural. The notice of motion to amend Order 3 by adding the future-work claim to the reference was dismissed with costs ([38]).
The Owners Corporation wanted a claim for future building work added to a reference ordered after an earlier appeal. The Court of Appeal said the claim was not included: the primary judge had treated it as falling away, and the Owners Corporation had not asked the Court of Appeal to revisit that result. Setting aside the primary judge’s overall monetary order did not bring the unpursued claim back into the case. The Court also refused to change its orders, noting that the Executors had not had the chance to address the claim and that the Owners Corporation had not explained its omission from the appeal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
4 cited instruments linked from this judgment.
2,167 words · generated 06/10/2026
This decision concerns the scope of a reference ordered after an earlier Court of Appeal judgment, rather than a fresh determination of the underlying strata dispute. The Owners Corporation asked the Court to amend its orders so a claim for future building work would be included in the amounts referred for further determination. The Court dismissed the motion with costs ([38]).
The underlying dispute concerned Lot 11 in a strata building at Point Piper. By-law 30 granted the owner of Lot 11 exclusive-use rights over parts of the common property and placed repair and maintenance obligations on that owner. Under par 30.3, continuation of the exclusive-use rights after a “Sunset Date” depended on specified matters, including completion of certain works by that date. Paragraph 30.7 provided for rights of reimbursement, damages and indemnity if the owner failed to complete the work ([7]–[8]).
The Owners Corporation claimed money under by-law 30 and s 145(3) of the Strata Schemes Management Act 2015 (NSW), which relevantly permits an owners corporation to recover as a debt money payable under a common property rights by-law ([7]). Its building-related-costs claim included $406,152.86 for “future work” ([11]). The primary judge found that the required work had not been completed by the Sunset Date and made findings about liability for certain costs. But the judge also declared par 30.3 unjust under s 149(1)(c) and remitted the matter to the Tribunal. Because of the judge’s conclusion about by-law 30, the future-work figure “immediately falls away”; the judge treated the building-related-costs claim as reduced to the costs of work already done ([10], [12]).
The Owners Corporation appealed, including challenging the declaration that par 30.3 was unjust. However, it did not challenge the dismissal of the future-work component in its appeal grounds or submissions. The Executors cross-appealed against the primary judge’s monetary order. The Court of Appeal allowed the cross-appeal to the extent that it set aside that order, and referred claims still in issue for further determination ([17]–[25]).
The Owners Corporation later argued that the reference to the “remaining amounts claimed” covered future work, or that the orders should be varied to make that clear. Its proposed wording would have inserted a new subparagraph expressly including the future-work amounts ([4]). The Court rejected the proposed construction and refused the variation.
The central question was what the Court of Appeal meant by “the remaining amounts claimed by the Owners Corporation” in Order 3(2A). The Court did not interpret those words in isolation. It read them objectively with the reasons for judgment and the procedural history that the reasons recorded ([27], [33]).
That history mattered. The primary judge had treated the $406,152.86 future-work component as falling away. The Owners Corporation challenged the finding that by-law 30.3 was unjust, but did not seek an order overturning the primary judge’s monetary order on the ground that it should have included future work. It also did not mention that claim in its written or oral submissions on appeal ([17]–[22]). The Court noted that the Owners Corporation had referred to future works in a costs submission, but in a way that effectively accepted that the primary judge had not allowed the claim ([23]–[24]).
The Court therefore understood the reference as covering claims that had remained in issue on appeal and could not be determined by the Court itself. It was not a mechanism for adding a claim that had been dismissed below and not pursued in the appeal. The Principal Judgment had expressly recorded that no party sought to reagitate the dismissal of the future-work claim ([13], [27], [33]).
The Owners Corporation argued that the primary judge had not made a separate order expressly dismissing that head of claim. The Court rejected that distinction. It reasoned that the primary judge’s Order 2 gave effect to the judge’s decision on the whole building-related-costs claim, including the exclusion of future work. If the Owners Corporation considered that order wrong because it omitted future work, it could have challenged it on that basis. The fact that the Court of Appeal later set Order 2 aside on the Executors’ cross-appeal did not revive the unpursued claim ([16], [28]–[29]).
The Court separately considered whether to vary the orders even if it had power to do so. It did not decide whether UCPR rr 36.17 or 36.16(3), or Order 12, supplied that power. Instead, it assumed power and refused relief as a matter of discretion ([34]–[35]).
Two considerations were material. First, the Executors had not had the opportunity to address the future-work claim on appeal. The Court considered it conceivable that submissions about the construction and application of by-law 30 could have affected the claim, including whether a requirement to reimburse the “actual cost” of “completing” works could extend to work not yet done ([36]). Second, the Owners Corporation offered no explanation for omitting the issue from its appeal case. The Court considered it appropriate to hold the Owners Corporation to the case it had run ([37]).
The decision is thus based on the interpretation of the particular appellate orders and the conduct of this particular appeal. It does not determine the underlying merits of the future-work claim.
The judgment does not announce a new rule of strata law or alter the meaning of ss 145 or 149 of the Strata Schemes Management Act 2015 (NSW). Those provisions formed part of the background to the earlier dispute. This motion turned on the scope of the Court of Appeal’s reference and whether its orders should be varied ([7], [9], [33]–[35]).
Before this decision, the Court of Appeal had made orders referring the Owners Corporation’s claims “remaining in issue” for determination. Order 3(2A) used the phrase “remaining amounts claimed”. The Owners Corporation contended that the future-work amount was caught by that language because the primary judge’s monetary order had later been set aside ([25]–[29]).
After this decision, the Court’s construction was that the phrase covered the claims litigated in the appeal but not claims whose dismissal had not been challenged. The reasoning depends on the actual history and wording of the orders. The Court did not say that every claim omitted from an appeal is necessarily extinguished in every procedural setting. Its conclusion was that this claim was outside this reference, construed in light of the Principal Judgment ([27], [33]).
The judgment also leaves open the procedural power question. The Owners Corporation invoked UCPR r 36.17, r 36.16(3), and liberty to apply under Order 12. The Court noted the relevant limitations or scope of those mechanisms but considered it unnecessary to decide whether they authorised the requested change. It assumed power and decided the matter in discretion ([34]–[35]). Accordingly, the decision should not be read as deciding the general availability of those provisions for variations of appellate orders.
Nor does the judgment decide whether the Owners Corporation could have established liability for future work under the by-law. The Court identified a possible question about whether reimbursement for the actual cost of completing work could cover work not yet done, but used that only as an example of an issue on which the Executors might have made submissions ([36]).
At [27], the Court explained that the words “claims remaining in issue” and “remaining amounts claimed” referred to claims that had been litigated in the appeal but could not be determined by the Court itself. Plainly, the reference was not an open invitation to add a separate claim that had not been pursued in the appeal.
At [29], the Court said: “The mere fact that Order 2 was set aside in this Court, on the Executors’ cross-appeal, does not mean that it is now open to the Owners Corporation to reinvigorate a claim that was not pressed on appeal.” In ordinary terms, removing the primary judge’s overall monetary order did not automatically restore every component previously excluded from it.
At [33], the Court stated that the future-work claim was not caught by Order 3(2A) as a “remaining amount[] claimed”. This was the direct answer to the construction issue. It relied on the Principal Judgment’s statement that no party had sought to reagitate the primary judge’s dismissal of that head of claim ([13], [33]).
At [35], the Court said it was “not necessary to determine” whether the procedural sources relied on gave it power to make the variation. The practical significance is that the decision cannot be treated as resolving the reach of UCPR rr 36.17 or 36.16(3), or the scope of Order 12, beyond the Court’s decision not to vary the orders in this case.
At [36], the Court noted it was conceivable that the Executors could have made submissions bearing on the application of the by-law to future work. This was not a finding that such submissions would have succeeded. It explained why adding the claim after the appeal could raise procedural fairness or prejudice concerns.
Finally, at [37], the Court said: “The Owners Corporation should be held to the case that it ran on appeal.” That summarises the discretionary basis for refusing to reopen the scope of the reference where the omitted issue had not been explained.
The decision is most directly relevant where an appellate court has ordered a reference or remittal using language such as “remaining claims”, “remaining amounts”, or “claims in issue”, and a party later seeks to include a claim that was dismissed below but not pursued on appeal. The judgment indicates that the reference’s scope may be determined by reading the operative order together with the appellate reasons and the history of the appeal ([27], [33]).
It is also relevant where a primary order is set aside on appeal for reasons raised by another party, and the party whose claim was excluded argues that setting aside the order revives that claim. The Court rejected that proposition on these facts: setting aside Order 2 did not change what claims the parties had litigated or what the appellate reference covered ([29]).
A further triggering circumstance is an application to vary final appellate orders after the appeal, particularly where the proposed variation could introduce a claim or issue the opposing party did not address at the hearing. The Court’s reasoning highlights the possible significance of prejudice and the applicant’s explanation for not raising the point earlier ([36]–[37]).
The case does not establish that every omitted claim is incapable of inclusion in a later reference, or that every variation application must fail. It concerns the particular appeal record, the terms of the orders, and the absence of any explanation for not pursuing the future-work claim earlier.
The judgment is dated 29 October 2025. The supplied text contains no decisions made after this judgment and therefore provides no account of later judicial treatment. It would not be possible, from this judgment alone, to say whether later courts have followed, distinguished, or otherwise applied it.
The decision itself relies on the Court’s Principal Judgment, Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279. The present Court treated the earlier judgment’s statement that the future-work claim had not been reagitated as important context when construing Order 3(2A) ([1], [13], [27], [33]). It also referred to the primary judgment, Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP6534 [2024] NSWSC 173, for the first-instance findings and orders ([10]–[12]).
Those references explain the procedural record in this case. They do not supply a survey of how other courts have treated the present decision.
The Court expressly left undecided whether UCPR r 36.17, r 36.16(3), or Order 12 empowered it to make the variation sought. Its decision proceeded on the assumption that it had power and rested on the refusal to exercise discretion ([34]–[35]). The judgment therefore does not determine the general circumstances in which those procedural mechanisms may permit variation of an appellate order.
The underlying substantive question about future work also remained unresolved. The Court did not determine whether by-law 30.7.9, requiring the owner to reimburse the Owners Corporation for its “actual cost” of “completing” works, could apply to work that had not yet been done. It identified that as a possible question that might have been argued if the claim had been raised on appeal ([36]).
The judgment does not determine whether, or in what circumstances, an omitted claim could be added to a reference where the omission was explained, the opposing party had a proper opportunity to respond, or the appellate orders expressly covered it. Its conclusion is confined to construing Order 3(2A) in this case and refusing the requested variation on the history before it ([33], [35]–[38]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Owners Corporation SP6534 v Elkhouri (No 2) [2025] NSWCA 237
Hearing dates: On the papers
Date of orders: 29 October 2025
Decision date: 29 October 2025
Before: Ward P, McHugh JA, Griffiths AJA
Decision: The notice of motion is dismissed with costs.
Catchwords: JUDGMENTS AND ORDERS — Application to vary orders — Where head of claim dismissed by primary judge on particular basis — Where basis successfully disturbed on appeal — Where head of claim not reagitated on appeal — Where Court of Appeal referred “remaining amounts claimed” to referee — Whether head of claim included in reference — Whether orders should be varied to include head of claim in reference
Legislation Cited: Strata Schemes Management Act 2015 (NSW), ss 145, 149
Uniform Civil Procedure Rules 2005 (NSW), rr 31.16, 36.17
Cases Cited: Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279
Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP6534 [2024] NSWSC 173
Category: Consequential orders
Parties: Owners Corporation SP6534 (Appellant/Cross-Respondent)
Karam Elkhouri (First Respondent/First Cross-Appellant)
Philippe Elkhouri (Second Respondent/Second Cross-Appellant)
Representation: Counsel:
T Rollo (Appellant/Cross-Respondent)
H Altan (First Respondent/First Cross-Appellant; Second Respondent/Second Cross-Appellant)
Solicitors:
Carroll & O’Dea Lawyers (Appellant/Cross-Respondent)
Bartier Perry Lawyers (First Respondent/First Cross-Appellant; Second Respondent/Second Cross-Appellant)
File Number(s): 2024/00115025; 2024/00164446
Publication restriction: Nil.
THE COURT: The principal judgment of some 338 paragraphs was given in this matter on 27 November 2024: Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279 (the Principal Judgment). These reasons assume familiarity with that judgment and with the terms used in it.
The orders made on 27 November 2024 provided for a complex regime of references in order to address, among other things, “the remaining amounts claimed by the [appellant] Owners Corporation”: Order 3(2A). As to the reference with respect to that aspect of the matter, McHugh JA (with whom Ward P and Griffiths AJA agreed) said at [268]:
“The terms of the reference should otherwise be closely circumscribed. These proceedings have already continued for too long, have consumed too much of the limited public resources provided by the Tribunal and the Supreme Court of New South Wales, and no doubt have cost the parties much money, too.”
Order 12 granted “Liberty to apply to McHugh JA’s associate on 7 days’ notice for any variation of the orders made by order 3 above in relation to the referrals out and remittal of the matter to the Equity Division”. The parties took up that liberty in respect of matters that are not presently relevant, and amended final orders were made on 18 December 2024.
By notice of motion filed on 28 July 2025, the Owners Corporation now seeks the following order:
“Pursuant to leave granted by order 12 of the orders of this Court made on 18 December 2024, or alternatively pursuant to UCPR 36.17, order 3 of the orders of this Court made on 18 December 2024 is amended by inserting, after subparagraph 3(2C), a new subparagraph 3(2D) in the following terms:
‘For the avoidance of doubt, the remaining amounts claimed by the Owners Corporation, as referred to in paragraph 3(2A), include the amounts claimed by the Owners Corporation in the Court below in respect of future works.’”
The notice of motion has been determined on the papers following an exchange of written submissions that concluded on 25 September 2025.
The circumstances in which the issue arises are as follows.
The respondents/cross-appellants in this Court are the executors of the estate of the late Mr Said Elkhouri (the Executors), the registered proprietor of Lot 11 in a strata title apartment building located at Point Piper in Sydney, of which the appellant/cross-respondent is the Owners Corporation. The Owners Corporation claimed at first instance that it was entitled to recover certain sums from Mr Elkhouri under a combination of certain provisions of by-law 30 of the strata scheme and s 145(3) of Strata Schemes Management Act 2015 (NSW) (the SSMA). Section 145(3) relevantly provides that an owners corporation may recover as a debt any “money payable by an owner to the owners corporation under a common property rights by-law”.
By-law 30 was such a “common property rights by-law”. It granted rights to the exclusive use of parts of the common property in the building in favour of the owner of Lot 11. It also imposed obligations of repair and maintenance of those parts of the common property on the owner of Lot 11. Paragraph 30.3 of the by-law provided that the continuation of the exclusive use rights after a Sunset Date was conditional on various matters, including that the owner of Lot 11 complete certain works by the Sunset Date. By par 30.7, in the event that the owner of Lot 11 failed to complete that work, the Owners Corporation could complete the work and was given certain rights of reimbursement, damages and indemnity against the owner of Lot 11.
The Owners Corporation claimed that Mr Elkhouri had failed to complete the work by the Sunset Date. It brought money claims under various provisions of by-law 30; these were the subject of detailed consideration in the Principal Judgment. The Executors claimed that par 30.3 was “unjust” within the meaning of s 149(1)(c) of the SSMA. That section, which was also the subject of detailed consideration in the Principal Judgment, confers power on the NSW Civil and Administrative Tribunal to make “an order prescribing a change to a by-law if the Tribunal finds … that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust”.
Relevantly for present purposes, in Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP 6534 [2024] NSWSC 173 (the Primary Judgment), the primary judge, Elkaim AJ, found that Mr Elkhouri had not completed the necessary works by the Sunset Date; that Lot 11’s exclusive use rights ceased by operation of par 30.3; and that the Owners Corporation was entitled to recover certain costs and liabilities pursuant to par 30.7. However, the primary judge also made a declaration that par 30.3 was “unjust” within the meaning of s 149(1)(c), and remitted the matter to the Tribunal for it to make orders about par 30.3 arising out of the declaration.
“173 The Owners Corporation asked for the following discrete amounts:
(1) $779,250.72 for building related costs;
(2) $75,000 for GST;
(3) $354,541.53 for associated claims by lot owners; and
(4) legal costs (to be determined by a referee or costs assessor).
174 The $779,250.72 is made up of:
(1) work done by Core: $15,048.00;
(2) work done by Renfay: $269,155.70;
(3) work done by Partridge: $88,894.16; and
(4) future work: $406,152.86”.
“The final figure for future work immediately falls away because of my finding in respect of By-law 30. This is because without the forfeiture clause the existing use rights continued, together with the attendant obligations, which included responsibility for future maintenance. This leaves the total of the claim for work at $373,097.86. Although the whole of this amount has already been paid, the Owners Corporation (and Perpetual) did not accept that the amounts had been reasonably incurred.”
“His Honour found that the figure for future work ($406,152.86) fell away because of his Honour’s finding in respect of by-law 30. No party on the appeal sought to reagitate the primary judge’s dismissal of the head of claim for future work.”
The Owners Corporation does not suggest that there was any error in the statement that no party sought to reagitate the issue on the appeal. That statement was made in the context of the issues that were actually litigated in this Court with respect to the Owners Corporation’s claim “for building related costs”. Those issues arose (on the Executors’ notice of cross-appeal, not on the Owners Corporation’s notice of appeal) as follows.
The effect of the primary judge’s dismissal of the component of the Owners Corporation’s claim for “building related costs” that had concerned future work was that the balance of the claim for building related costs was the sum of $373,097.86 (being the total of the three components for Core, Renfay and Partridge). As to those three components of the claim for building related costs, the primary judge found in favour of the Owners Corporation in part, concluding at [192]: “The total for the claim … for work done by Core, Renfay and Partridge is $283,585.39”. That figure was the amount that the primary judge awarded on account of the Owners Corporation’s entire claim for “building related costs”, including the component of the claim for “future work” (which had fallen away). His Honour separately allowed a figure of $166,783.98 on account of what were described in this Court as the Lot owner claims (in effect, damages the Owners Corporation claimed from the Executors on account of liabilities of the Owners Corporation to other Lot owners). Together, those sums became part of the total figure in the primary judge’s Order 2, being amounts awarded in favour of the Owners Corporation pursuant to s 145 of the SSMA: see Primary Judgment at [240] and [250(2)].
The primary judge’s Order 2 thus gave effect to his Honour’s decision as to the whole of the Owners Corporation’s claim to recover “building related costs”, including his Honour’s dismissal of the claim for “future work”.
The way in which the parties approached Order 2 on the appeal is important. In its notice of appeal, the Owners Corporation did not seek to have Order 2 set aside, or otherwise criticise it. Nor was there any ground of appeal to the effect that the primary judge had erred in failing to make an award on account of “future work”. That was so, notwithstanding that the Owners Corporation expressly challenged, by Grounds 1 and 2, the primary judge’s conclusion that by-law 30.3 was unjust, and by prayer 2 sought an order setting aside his Honour’s declaration to that effect. Yet that declaration had been the basis upon which the primary judge determined that the claim for “future work” had fallen away.
Similarly, the Owners Corporation’s written submissions on the main appeal addressed a number of matters going to the correctness of the declaration that by-law 30.3 was unjust. But those submissions made no mention of any claim for “future work”. The submissions also addressed Ground 5 of the notice of appeal, which was that the primary judge had “erred by failing to make an order that the respondent pay to the appellant the costs and expenses incurred within the meaning of By-law 30 pursuant to s 145(3)” of the SSMA. The complaint advanced at pars 30 and 35 of the written submissions in relation to Ground 5 was that the Owners Corporation had been entitled to recover “legal and consultant costs”, and that the primary judge had neither determined those parts of the claim nor referred them to a referee. (Those parts of the claim were addressed in Order 3(2C) in this Court.) There was no suggestion in the Owners Corporation’s written or oral submissions on the appeal that there was a different kind of error in his Honour’s approach to the amount recoverable pursuant to s 145(3), namely, that his Honour had awarded nothing on account of building related costs for “future work”.
“Next, the ‘Building related costs’ (~$1.1m) claimed by the Owners included a claim of ~$400k as to damages for future works to a part of the Building (Level 6). This was not granted by the primary judge on the express premise that such future works would be the responsibility of the owner of Lot 11 because they had assumed responsibility for the repair and maintenance of those areas: PJ [176]; CJ [28]. That the Owners subsequently reduced their claim based on the evidence that arose during the hearing is a reasonable and indeed appropriate concession to make.”
In light of that submission, it could not be suggested that the Owners Corporation had overlooked its claim for “future works”. There was no suggestion in this submission that in this Court the Owners Corporation was challenging the primary judge’s finding dismissing the future work claim. To the contrary, the submission effectively embraced the failure of that claim.
The Executors succeeded on their cross-appeal, such that Order 2 made by the primary judge was set aside: Principal Judgment at [255]-[257] and Order 3. However, as this Court was not in a position to determine for itself what findings should have been made in relation to the Owners Corporation’s money claims that had been the subject of the primary judge’s Order 2, the Court determined to refer those questions out on the basis stated at [267]:
“The reference should be as to entitlement and quantum with respect to the Owners Corporation’s claims remaining in issue. (The Owners Corporation’s claims to recover costs and expenses are separately addressed below in connection with Grounds 4 and 5 in the notice of appeal.)”
(Emphasis supplied.)
As to the “claims remaining in issue”, the Principal Judgment had pointed out at [264] that “there were aspects of the Owners Corporation’s money claims that the Executors conceded below or on the appeal”. These concerned three discrete sums. The structure of Order 3 made on the appeal was thus to set aside Order 2 made by the primary judge, and to order in lieu thereof:
that the Executors pay the Owners Corporation the three undisputed sums: Order 3(2);
that “the remaining amounts claimed by the Owners Corporation”, other than those referred to at [267] of the Principal Judgment, be referred to a referee: Order 3(2A);
that the Owners Corporation’s separate claim pursuant to s 86(2A) of the SSMA for the reasonable legal costs incurred in recovering certain special levies (which had been the subject of Ground 4 in the Owners Corporation’s notice of appeal) be referred to a costs assessor to act as referee: Order 3(2B); and
that the Owners Corporation’s claim pursuant to s 145(3) of the SSMA “to recover any costs or expenses referred to at [267] of the judgment in this Court, including legal and consultant costs” (which had been the subject of Ground 5 in the Owners Corporation’s notice of appeal) be referred to the referee: Order 3(2C).
The words “the Owners Corporation’s claims remaining in issue” in Principal Judgment [267] were echoed in Order 3(2A): “the remaining amounts claimed by the Owners Corporation …” Those words were directed to referring out the Owners Corporation’s claims, including the claims for building related costs, that had been litigated in this Court but which this Court had been unable to determine for itself. Those words were not directed to a claim in respect of “future work” which had been the subject of no analysis in the Primary Judgment and no ground of appeal or submission in this Court.
On the notice of motion, the Owners Corporation now submits the following at pars 11, 14 and 18 about the primary judge’s orders:
“… There was no order dismissing the head of claim for future work. Rather, Order 2(2) provided for payment of a judgment sum in favour of the Owners Corporation that omitted the amount for future work. That is, the only order that could even arguably be regarded as dealing with the head of claim for future work is the order providing for the judgment sum, by way of not including any amount on account of that. That order was set aside by order 3 made by this Court on 18 December 2024.
…
There was no order dismissing the claim for future works. Accordingly there was no order from which to appeal on the claim for future works (because only orders can be appealed, not the bare reasons), other than the orders for the declaration and for remittal to NCAT. …
…
Moreover, even to the extent that order 2(2) might be argued to have had the implicit effect of dismissing the claim for future works, that order was set aside by order 3 of this Court made on 18 December 2024. There was no need for the Owners Corporation to seek further orders addressing that issue.”
There can be no doubt in light of the primary judge’s reasons that he dismissed the component of the claim for “future work”. It was unnecessary for his Honour to make an order separately referring to that component of the claim, when Order 2, which gave effect to his Honour’s decision about the Owners Corporation’s claims for building related costs, necessarily involved dismissal of the component of those claims constituted by the claim for “future work”. If the Owners Corporation was dissatisfied with Order 2, it was open to the Owners Corporation to challenge that order on the basis that the amount awarded on account of building related costs should have included an amount for future work. The mere fact that Order 2 was set aside in this Court — on the Executors’ cross-appeal — does not mean that it is now open to the Owners Corporation to reinvigorate a claim that was not pressed on appeal. That the order was set aside says nothing about the scope of the reference to determine the Owners Corporation’s remaining claims. The question is, what are the Owners Corporation’s “claims remaining in issue” to which [267] of the Principal Judgment and Order 3(2A) are directed?
The Owners Corporation submits that the primary judge’s orders were varied on 19 April 2024 so as to grant “liberty to apply in the event that the New South Wales Civil and Administrative Tribunal declines to make an order removing cl 30.3 of By-law 30”. The Owners Corporation points to the transcript of the application that led to that variation, which included the following:
“HIS HONOUR: I understand. You’re worried that if it goes back to NCAT and they say no, we’re not changing bylaw 30, then you’ve got a bit of a problem because—
CHESHIRE: Yes.
HIS HONOUR: Because then the 403 won’t be—
CHESHIRE: Exactly.
HIS HONOUR: —on—
CHESHIRE: Yes.
HIS HONOUR: Will be your obligation.”
Tcpt, 19 April 2024, 6.2-16; affidavit of Selwyn Leslie Black dated 24 July 2025, p.24.
Counsel for the Executors ultimately stated: “I’m happy with the alternative order that’s been suggested … that there be liberty to apply”: at 11.15-19.
The Owners Corporation submits that the reference to “403” should be understood as a reference to the claim for future work in the sum of $406,152.86. The Owners Corporation submits that this amounts to a recognition below that “if (as is now the case), the exclusive use right was not reinstated [i.e. by the Tribunal], the future costs would need to be revisited”: at par 6; see also at pars 13 and 15. Even assuming the correctness of those propositions (which are contested by the Executors on the notice of motion), that says nothing about what was in issue in this Court. The submission made for the Owners Corporation at par 17 that “it was not necessary for the Owners Corporation to seek specific orders on the appeal dealing with the cost of future works, or even to mention that” (emphasis supplied) must be rejected.
The meaning of Order 3(2A) is to be determined objectively, including in light of this Court’s reasons for judgment. As noted above, the reasons stated — correctly — at [221]: “No party on the appeal sought to reagitate the primary judge’s dismissal of the head of claim for future work”. That claim was thus not among those contemplated by [267] as one of the “claims remaining in issue”. On the proper construction of the Court’s orders, the claim for “future work” is not caught by Order 3(2A) as a “remaining amount[] claimed”.
The Owners Corporation thus needs a variation to the existing orders. Its notice of motion refers to the leave granted by Order 12 of the orders of the Court made on 18 December 2024, and to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.17. Its written submissions further invoke UCPR, r 36.16(3): at par 4(b).
It is not necessary to determine whether any of r 36.17 (which is concerned with “an accidental slip or omission”), r 36.16(3) (which does not apply to a judgment or order that “determines any claim for relief, or determines any question … arising on any claim for relief”), or Order 12 (which was directed to the means by which to seek a variation of, most obviously, the mechanics of the orders for referral) would permit the Court to make the variation sought. Even assuming that the Court has power to vary its orders, no such variation should be made in the exercise of the Court’s discretion.
As will be apparent to anyone reading the Court’s reasons and the six pages of orders made in this case, a good deal of attention was paid to the construction of the relevant provisions of by-law 30 in light of the claims that were advanced in this Court, and to the interaction between by-law 30 and the provisions of the SSMA. The Court was not addressed on the claim for future work. As the Executors submit on the notice of motion, they were denied the chance to make any submission on the claim for future work at the hearing of the appeal. The Executors submit that the whole of the claim for future work related to level 6: at par 3. They submit that the issues at both the trial and the appeal were essentially concerned with level 5 only. They submit that in those circumstances “there is a real prospect of prejudice to the Executors which is self-evident”: at par 18. That submission was not developed. But it is at least conceivable that submissions might have been made in this Court as to the construction of the provisions of the by-law which might have had a significant bearing on their application by any referee to the Owners Corporation’s claim for future work. For example, there might be a question whether any liability arising under par 30.7.9, which provided that “the owner of Lot 11 must the Owners Corporation for its cost of those works”, extended to work that had not yet been done.
**********
Owners Corporation SP6534
Elkhouri
The notice of motion to amend Order 3 by adding the future-work claim to the reference was dismissed with costs ([38]).
The primary judge described the Owners Corporation’s money claims as follows at [173]-[174]:
By contrast, by their cross-appeal, the Executors sought to have Order 2 set aside on the basis that the primary judge had not made findings necessary to establish the Executors’ liability. Ground 3 in the notice of cross-appeal included the express complaint that the primary judge “erred in awarding damages against the Cross-Appellants for building related costs …”
The Owners Corporation resisted the cross-appeal on the basis that “the primary judge was correct to so order”. This was clearly a reference to the primary judge’s Order 2: see “Appellant’s/Cross-Respondent’s Submissions on the Cross-Appeal” dated 13 August 2024 at pars 2-3. The Owners Corporation’s written submissions on the cross-appeal were directed to showing that the amounts which were the subject of Order 2 at first instance were properly awarded against the Executors. Thus, a table at par 22 of the Owners Corporation’s written submissions identified the four components into which the “award of the monetary amount by the primary judge was separated”: work done by each of Core ($15,048.00), Renfay ($201,866.77) and Partridge ($66,670.62) (being together the “building related costs”), and the Lot owner claims ($166,783.98).
Again, there was no suggestion in those written submissions that there was an error lurking in the primary judge’s Order 2, in that it failed to award an amount on account of the Owners Corporation’s claim for future work. The written submissions on the cross-appeal did not refer to that claim at all. Nor did any party refer to the claim for future work in the course of the hearing of the appeal.
If the claim for future work was being pressed on the appeal, on the ground that the basis on which the primary judge had said that claim fell away (i.e., that by-law 30.3 was unjust) was itself an error, one would expect that to appear somewhere in the Owners Corporation’s notice of appeal, or in its written submissions, or in its oral submissions at the hearing of the appeal. None of those things occurred.
Instead, the Owners Corporation made a glancing reference to the claim for future works in a quite different context. At par 27 of their separate Reply Submissions on Costs, the Owners Corporation submitted (appeal book references omitted):
But there is a still more basic issue here. No explanation has been proffered for why the claim for future work was not raised in the notice of appeal or in the written or oral submissions in this Court as something that remained to be determined. It is appropriate to proceed on the footing that there was a forensic choice not to raise the issue. It is not hard to think of reasons for choosing not to raise such an issue (which would attach substantial baggage to the central issue on the appeal, namely, whether the by-law was unjust). The Owners Corporation should be held to the case that it ran on appeal.
The notice of motion must be dismissed with costs.