The Owners Corporation SP 90832 v Dyldam Developments Pty Ltd

JUDGMENT

1. 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.
2. 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.
3. 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.
4. 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.
5. I was informed that the Owners did not oppose the application.