“I don’t need you...or do I?"

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By Ziv Ben-Arie, Partner

Adrigan v Owners Corporation SP83475 [2016] NSWCATAP 58

Summary

An owner builder recently failed in his defence against an Owner’s Corporation claim for defects, primarily because he was not adequately prepared and unrepresented. At the hearing, the builder sought an adjournment but the Tribunal refused that application. The builder then appealed, but the Appeal Panel upheld the Tribunal’s decision.

By failing to ensure that he was adequately prepared or legally represented at the final hearing, the builder suffered an award against it for $228,509.00, which was the entirety of the claim against it.

Facts

  • Mr Adrigan (Builder) was an owner builder, who undertook construction of a residential apartment complex on land owned by him, comprising of 3 lots. He then registered a strata plan in respect of the property, and sold the apartments to individual lot owners, who formed the Owners Corporation of the Strata Plan (OC).
  • The OC commenced proceedings in the New South Wales Civil and Administrative Tribunal (NCAT), seeking $228,509.00 on account of defects.
  • The parties were granted leave to be legally represented by the Tribunal on 22 August 2014 and the hearing took place on 16 February 2015. At the final hearing, the OC was legally represented, while the Builder was not.
  • At the hearing, the Builder requested an adjournment so that he could obtain legal advice. The Tribunal declined to grant an adjournment given the previous opportunity to do so. The hearing proceeded, with the OC’s lawyer tendering several statements and reports into evidence. The Builder failed to tender any evidence or to adequately challenge the OC’s evidence.
  • The Tribunal awarded the OC the full amount of its claim. The Builder sought to appeal.

Finding

In their judgment, the Appeal Panel Senior Members Callaghan SC and Rosser dismissed the appeal, dismissed the application for leave to appeal, and affirmed the Tribunal’s order against the Builder.

The Principal and Senior Members concluded [at 22-23]:

“Against the background of such considerations, the interlocutory history of the matter……. it was not inappropriate for the Tribunal to have refused the Builder’s application for an adjournment.”

Impact

This case is a reminder of the importance of obtaining legal representation in any Tribunal or Court proceedings. Failure to do so means having to navigate through the specific Rules applicable to the jurisdiction with the risk of non-compliance with the ultimate risk of a judgment being made against you.

NCAT has jurisdiction to award up to $500,000 for claims. Therefore the risks of not obtaining proper legal representation at the earliest opportunity can be very high.

 

 

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