HIS HONOUR: On 28 November 2024, I handed down judgment in The Owners Corporation SP 90832 v Dyldam Developments Pty Ltd [2024] NSWSC 1519 (the first judgment). Definitions in the first judgment are used here.
Before handing down judgment, I had received written submissions from Dix expressed to be in support of an application that the separate question be removed to the Court of Appeal pursuant to UCPR 1.21(1) and (4), which provides:
(1) The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal -
(a) if it makes an order under rule 28.2 for the decision of a question of law, or
(b) if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal.
…
(4) In this rule, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
As the first judgment records, during argument on a separate question (which had been ordered by the Court to be tried before other questions in these proceedings) I formed the conclusion that there were significant difficulties with it. One difficulty, amongst others, was the effect on the proceedings of possible appeals: first judgment [28]-[31]. Acceding to an application to remove the separate question to the Court of Appeal, might have been thought to have alleviated this problem, at least in part.
Dix put that the special circumstances warranting removal are that:
1. the matter is of public importance;
2. significant and difficult questions are involved;
3. the issue is not governed by existing authority;
4. there is a high likelihood of leave to appeal being sought by a disappointed party; and
5. any additional evidence would be within a narrow compass.
I was informed that the Owners did not oppose the application.
Counsel for Dix also conveyed to the Court that Dix wished to have a further opportunity to address the Court on, whether the order for the separate question should be revoked and the removal application. Counsel for the Owners indicated that they too might wish to be heard further.
With the consent of counsel for the Owners and Dix, I handed down the first judgment to enable them to consider my reasons, but on the footing that the revocation order would not take effect until they had had the opportunity to make further submissions.
I record that on 28 November 2024, other active defendants, having been given notice of the listing, appeared.
Given the longevity of the matter, I provisionally fixed the trial to commence on 18 August 2025 and made directions for the service of evidence and the usual order for hearing under Practice Note SC Eq 3.
Dix took up the opportunity of making further written submissions, received on the afternoon of 28 November 2024. The submissions have a somewhat strident tone and perhaps a little too many "with respect" references. The Owners did not take up the opportunity to make further submissions.
I have reconsidered the first judgment in light of the written submissions received from Dix. It is fair to say that those submissions reveal with additional clarity why the separate question is not a good idea.
The issue is undoubtedly of public importance. But Dix does not factor in the possibility of a High Court challenge and the possible delay if the High Court were to entertain that challenge before the trial.
Dix points out that the statement in [31] of the first judgment that the Owners' evidence is on, is wrong, because (as I was informed on 28 November 2024) the Owners wish to serve additional expert evidence on certifiers' liability, i.e. on what is reasonably required of a certifier. This inaccuracy itself is of no moment, but that there may be further evidence which may go to what is involved in the certifying function is an additional difficulty with the separate question.
Dix submits that the potential retrial referred to in [29] of the first judgment cannot be reasonably in prospect because no other defendant asked to be heard or even appeared at the proceedings on the question, and the only party with standing to challenge a "no" answer would be the Owners. It puts that the Owners must be taken to accept the risk of a retrial, given that it too wants the question to be determined. I reject each of these submissions.
That other defendants have left it, at this time, to the Owners and Dix to argue the "yes" and "no" cases respectively, does not mean they do not have a significant interest in it or lack standing later to challenge the answer. Depending on the circumstances, they may be advantaged or disadvantaged by either answer. The Court was not informed that any other defendant had made a formal concession that they would not have standing to appeal the answer.
The Owners and Dix may well be prepared to take the risk of a retrial. They may well be willing to embrace a pitfall which the authorities repeatedly counsel should be avoided. They may well be prepared to take a risk of a case going "off the rails". These are not reasons why the Court should do so.
Dix puts that the absence of particularised activity said to constitute the carrying out of construction work does not render the question imprecise or its answer inutile because the parties have agreed on the activities Dix carried out, being acting as Principal Certifying Authority, including carrying out inspections and issuing certificates. Leaving aside that the use of the word "including" is itself problematic, the mere articulation reveals the problem with it. If Dix carried out one inspection on a matter not the subject of the complaint, which is the totality of the construction work ultimately found, the answer to the question is entirely inutile.
That there may be additional factual material (at present not identified) remains a factor against the question. Dix refers to the fact that it has been agreed between it and the Owners that neither will, at final hearing, contend for any finding contrary to those sought at the separate question or made by the Court on that separate question. The Court was not taken to any evidence that other defendants have also so agreed. It should be remembered that the agreed facts are only agreed as between the Owners and Dix.
Dix submits that what I referred to in the first judgment as its "primary position" is not fact dependent. That may not be a view shared by others. I do not consider it appropriate to take the risk of a significant waste of judicial time if this turns out to be wrong.
Finally, it would be compounding a problem to order that the Court Appeal be burdened with an unsound separate question. I do not consider it an unrealistic possibility that if I were to do so, that that Court would itself revoke the order or decline to answer the question as framed.
This is a multiparty case where all issues should be dealt with together.
The revocation order takes effect immediately. In the circumstances, it follows that the application for removal of the question to the Court of Appeal must fail.
The application for removal of the separate question to the Court of Appeal is dismissed.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 December 2024