Bruno Pisano v Georgia Dandris

[2014] NSWSC 1071

Supreme Court

New South Wales

Medium Neutral Citation:	Bruno Pisano -v- Georgia Dandris [2014] NSWSC 1071
Hearing dates:	3 July 2014
Decision date:	03 July 2014
Jurisdiction:	Equity Division - Technology and Construction List
Before:	Hammerschlag J
Decision:	Application to amend dismissed
Catchwords:	APPLICATION to amend - no issue of principle
Legislation Cited:	Home Building Regulation 2004 (NSW) Home Building Act 1989 (NSW)
Category:	Procedural and other rulings
Parties:	Bruno Pisano - First Plaintiff Sia Pisano - Second Plaintiff Georgia Dandris - First Defendant Patrick Francis Williams - Second Defendant Angus Levitt Pty Limited - Third Defendant
Representation:	Counsel: D.S. Weinberger - Plaintiffs J.A. Jobson - First Defendant S. Jacobs - Second Defendant Solicitors: Gadens Lawyers - Plaintiffs Zelden Solicitors - First Defendant Alexanders Lawyers - Second Defendant
File Number(s):	2012/283119

EX TEMPORE Judgment

1. HIS HONOUR: This is the eighth day of a trial and the day upon which all evidence, lay and expert, has been completed.

1. At about 3.15pm today, the first defendant moved an application to raise a new matter in defence of the claim. The proposed new contention is based on Home Building Regulation 2004. Regulation 9 excludes from the definition of "residential building work" in s 3.(1) of the Home Building Act 1989 ("the Act") the supervision only of residential building work by a person supervising owner builder work for no reward or other consideration. It is proposed to contend that the first defendant is such a person and to plead that what she did was no more than supervision of owner builder work for no reward or other consideration.

1. Clearly, the matter now sought to be raised is one that must be specifically pleaded. More than that, in the course of the proceedings a formal admission was made by the first defendant that by virtue of s 18(c) of the Act, she owes the statutory warranties to the plaintiffs. The case has undoubtedly been conducted by the plaintiffs on the footing that neither the first defendant's status as an owner builder nor the applicability of the warranties given by the Act is in issue.

1. The explanation for the lateness of the application is that the lawyers only came across the point in the last 24 hours.

1. The application must be dismissed. To grant it would be inimical to the just, quick and cheap disposition of the real issues in the proceedings. The plaintiffs have cross-examined both the first and second defendants on the footing that the availability of the statutory warranties is not in issue.

1. The inevitable result of granting the amendment would be the refocus by the plaintiffs of cross-examination. I have no doubt that the plaintiffs will suffer forensic prejudice if the amendment is allowed. This is sufficient to warrant refusal of the application.

1. More than that, however, I am not persuaded that the matter sought to be relied upon has any realistic prospect of success. The Regulation does not exempt the first defendant in any event. She is an owner builder who carried out work, not a person who supervised residential work being carried out by an owner builder.

1. Additionally, the evidence overwhelmingly supports the conclusion, and only the conclusion, that the first defendant's role extended beyond only supervision.

1. Finally, there is one day left in the case. Usually, as Technology and Construction List Judge I would sit tomorrow (Friday) in that and the Commercial List but I am not doing so, so as to facilitate the completion of this case. I would not be able to sit in this case for some weeks, even months, were it not to be completed tomorrow.

1. The application is dismissed.

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Decision last updated: 08 August 2014