In a 50 page written judgment yesterday, the Court of Appeal in Brisbane ruled in favour of the developer Mark Bain Constructions in regards quantum of the compensation.
In a Supreme Court judgment last year, Mark Bain Constructions Pty Ltd was ordered to pay penthouse owner Carol Lynette Avis $283,917 in compensation and a further $185,471 in interest.
The company was also ordered to pay Barnscape Pty Ltd, $216,483 compensation and $141,419 in interest.
The Supreme Court hearing was told Mrs Avis and Barnscape entered into contracts for luxury units at Sunshine Beach on the belief they would have uninterrupted ocean views.
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Compo for cutting off ocean views
A DEVELOPER has been ordered to pay more than $500,000 in compensation to the owners of penthouses at a Sunshine Coast unit block whose view was blocked after they bought it off the plan. ..End of sidebar. Return to start of sidebar.
But after the contracts were settled they found their view was obstructed by a new building.
The Supreme Court trial heard Gary and Carol Avis and Grant and Lynette Brecht (through their company Barnscape) bought penthouse units off the plan in 2003 at a complex known as Number One Park in Park Crescent, Sunshine Beach.
The builder, developer and vendor of the complex, Mark Bain Constructions, offered the units through real estate agents Laguna Real Estate and Dolphin Bay Real Estate.
After they discovered their uninterrupted ocean views were blocked, Mrs Avis and Barnscape brought action against the developer and the real estate companies under the Trade Practices Act. But the real estate companies settled with them before the trial.
The developer brought proceedings against the agents but it was discontinued.
The Supreme Court judge awarded damages to each owner but reduced the payouts by the amount the unit owners had received from their earlier settlements with the real estate agents.
However, Mark Bain Constructions then appealed on numerous grounds in regards to liability and quantum.
In an unanimous judgment the Court of Appeal upheld the appeal on quantum and reduced the payouts.
The Court of Appeal ordered in Mrs Avis’s case the compensation and interest be reduced from a total $469,388 to $219,237.
In the case of Barnscape it ordered a reduction of from total of $357,902 to $288,860.
The Court of Appeal also made various costs orders regarding various hearings but did not award Mark Bain Constructions the costs of the appeal.
Justice Hugh Fraser said the reductions were substantial in each case and viewed in isolation, would favour orders giving the costs of each appeal to the developer.
“But this is a case in which the results on separate issues should be taken into account. Mark Bain Constructions failed on each of its numerous grounds of appeal aimed at avoiding any judgment against it for its contraventions of the Trade Practices Act.
“It is also relevant that some of Mark Bain Constructions arguments are common to both appeals, most notably the contention that the respondents settlements with the agents released it from any liability, were bereft of legal merit,” he said.
Justice Fraser said in all of the circumstances, there should be no order as to the costs of the appeal.
Source: www.couriermail.com.au
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