Shi Shi Cindy Lee v Dr Geoffrey Lee Jessica Talbert v Dr Geoffrey Lee & Sue Maree Olsen/Lee. Sue Maree Olsen v Shi Shi Cindy Lee, Jessica Talbert, GP Legal Solicitors [2014] NSWCATCD 181

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shi Shi Cindy Lee v Dr Geoffrey Lee Jessica Talbert v Dr Geoffrey Lee & Sue Maree Olsen/Lee. Sue Maree Olsen v Shi Shi Cindy Lee, Jessica Talbert, GP Legal Solicitors [2014] NSWCATCD 181 Hearing dates: 23 May 2014 Decision date: 18 September 2014 Before: P Briggs, General Member Decision: 1. The Application is dismissed as frivolous, vexatious and misconceived. The issue of costs in relation to this application is yet to be determined. Catchwords: Frivolous, vexatious, misconceived, costs Legislation Cited: Civil and Administrative Tribunal Act 2013; Civil Procedures Act 2005; Home Building Act 1989; Consumer Trader & Tenancy Tribunal Act 2001 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Texts Cited: None Category: Principal judgment Parties: Shi Shi Cindy Lee, Jessica Talbert (applicants); Dr Geoffrey Lee; Sue Maree Olsen/Lee until she was removed as second respondent from the proceedings on 7 June 2013. Representation: Mr Greg Jones applying to represent Ms Olsen Application refused. Mr Vernier for Jessica Talbert. G P Legal for Chi Chi Cindy Lee; Makinson d'Apice for Jessica Talbert Champion Legal for Dr Geoffrey Lee; File Number(s): HB 12/44104; HB 12/44112, HB 14/24744 Publication restriction: Unrestricted

reasons for decision 1Shi Shi Cindy Lee commenced proceedings against Geoffrey Lee and Sue Maree Lee/Olsen by application to the Consumer Trader & Tenancy Tribunal on 27 August 2012. On the same day and in precisely the same terms Ms Jessica Talbert filed an application identifying Dr Geoffrey Lee and Ms Sue Maree Lee/Olsen as respondents in respect of her property which adjoins that of Ms Shi Shi Cindy Lee. The applications moved together through the interlocutory process. 2The applications concerned the alleged failure of owner builder work at adjoining sites in Lindfield. 3It was alleged that the "Owner builder failed to construct retaining walls According to approved plans. Remedial action to pin floating boulder is urgently required + property subject to a Section 121b order from Ku Ring Gai Council pursuant to EPA". 4The applications were referred directly to the CTTT without intervention by Fair Trading as they fell into a category of claim that by direction of the Chairperson of the Tribunal should proceed directly to the Tribunal. 5The claim was identified as a claim against an owner builder regarding defective work. 6The order under the Environmental Planning and Assessment Act 1979 required the property owner Ms Lee to; (1)Remove the defective retaining wall and associated fill to expose the rock face. (2)Undertake the rock dowling as per the recommendations from Geo Enviro Consultancy Pty Ltd dated 16 February 2012 in relation to the above premises. (3)The works are to be supervised by a Geotechnical Engineer and Certification provided to the Council upon completion. (4)Provide sediment/erosion controls until the site works have been complete or stabilised to prevent run-off to adjoining properties. 7Concisely, the problem as I have come to understand it is that a narrow sandstone "floater" varying in width from the exposed face on the drive of Ms Lee's property and Ms Talbert's property, Northwards to the up-hill property from 1800mm to 3000mm. The floater was acting as a retention structure for overburden fill. The floater is founded on a weak layer of clayey siltstone. The combination of the free face, weak foundation rock and overburden has resulted in creep movement of the floater to the South where it threatens to demolish the garage on Ms Shi Shi Cindy Lee's property. 8For abundant clarity I should note that Dr Lee and Sue Maree Lee/Olsen are or were married and at the time the matter came before the Tribunal were or are engaged in an acrimonious divorce which is or was stayed pending the outcome of the Tribunal proceedings. Ms Shi Shi Cindy Lee is unrelated to the other parties. 9The application and a subsequent application came before 6 members before coming before me on 6 December 2013. During this period the floater continued its inexorable decent towards Ms Lee's garage. 10I note that Ms Sue Maree/Lee Olsen attended 2 Directions hearings, and on 15 October 2012, 7 June 2013, and 1 Return of Summons hearings on19 February 2013 before various Tribunal Members until she was "removed as an respondent" by orders made on 7 June 2013. 11On that occasion Ms Sue Maree Lee/Olsen was represented by solicitors Lincoln Smith & Company, the appearance record does not indicate that the second respondent was represented at the hearing, or if the Member relied upon the solicitor's representations which briefly indicated that; * The building works, the subject of the claims were completed in 2007. * At the time and throughout the works Geoffrey Lee and Sue Marie Olsen were the registered proprietors of the land upon which the works commenced and completed. * At no time did Ms Sue Maree Lee Olsen perform building works. 12At the conclusion of the three page submission under the heading "Costs" The solicitors have recorded; "To date our client has chosen, under much strain, to represent herself in these proceedings..." For the above reasons the Applicant should not be able to proceed against our client. At the Directions Hearing on 6 March next we will be seeking an order she be granted an order removing our client as a party and for the proper "other party" to only be Geoffrey Lee - the owner builder." 13The anticipated March hearing was adjourned for reasons not relevant to this issue and as above noted at the next hearing Ms Lee/Olsen appeared in person and her request for removal from the proceedings was ordered. 14I note that various of the documents that have been filed in these applications show Dr Lee and Sue Maree/Lee Olsen as owner builders although it is acknowledged that only one person can be the owner builder and during the course of proceedings Dr Lee accepted responsibility for the owner builder work and for the rectification work. 15On the first occasion that the matter was listed before me I developed a scope of works including default arrangements in respect of engineering issues which were contentious. Several rectification options were under consideration with costs ranging from (approximately) $400,000.00 to $330,000.00 to $120,000.00. 16The scope and methodology for resolving matters between the experts was ultimately agreed between the remaining parties and work was put in hand at a value less than $80,000.00 with an order requiring Dr Lee to place the sum of the order in the Trust account of Champion Legal to be drawn upon by certification of two certifiers. 17Ms Sue-Maree Olsen then filed an Application on 9 May 2014 under the NCAT Act 2013 in which she sought costs against Ms Shi Shi Cindy Lee Ms Talbert and GP Legal in the sum of $1,512.32 on the basis that she had been wrongly joined to those proceedings in HB 12/44104, HB 12/ 44112. 18The matter was listed before me for determination of costs as between the parties to those proceedings as HB 14/24744. Ms Olsen sought to be represented by Counsel. 19I refused the application for leave and counsel withdrew, but the appellant in this application persisted and ultimately was permitted to be heard.