The Owners – Strata Plan No 97315 v Icon Co (NSW) Pty Ltd [2023] NSWCA 303

Andrew Hales |  Emily Miers

Key takeout

The NSW Court of Appeal reaffirmed the threshold to be satisfied by applicants seeking leave to appeal.  In doing so, the court dismissed an application for leave made by The Owners – Strata Plan No 97315 in respect of a finding regarding the proper rectification methodology of façade sunshades.

Facts

Our update on the Supreme Court decision can be read here.  The Supreme Court dismissed the owners’ application to vary or reject a referee’s report prepared in accordance with Uniform Civil Procedure Rules 2005 rule 20.14.

Following the Supreme Court’s decision, the owners sought leave to appeal the decision to the NSW Court of Appeal.  The owners sought leave on the basis that the referee and primary judge erred in finding the ‘C-bracket solution’ achieved contractual conformity.

Decision

The NSW Court of Appeal (Bell CJ, with Meagher JA and Adamson JA agreeing) dismissed the owners’ application for leave to appeal with costs.

Leave applications in the NSW Court of Appeal attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable.  The Chief Justice reaffirmed that test and concluded that the owners were unable to satisfy the court of this obligation.

In refusing leave sought by the owners, the Chief Justice observed that there were ‘powerful and unchallenged findings’ made by the referee, including repeated observations that the rectification solution advanced by the owners was ‘not a reasonable and proper method of rectifying the sunshades‘, disproportionate to any benefit to be obtained, of significant inconvenience to the occupants, and no more than a concept solution requiring detailed design and development work.

MinterEllison acted for Icon Co (NSW) Pty Ltd in these proceedings.