Owners Corporation Strata Plan 61288 v Brookfield Multiplex - [2012] NSWSC 1219

Supreme Court

New South Wales

Medium Neutral Citation: Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219
Hearing dates: 06/09/2012; further written submissions 05/10/2012
Decision date: 10 October 2012
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Judgment for first and second defendants with costs.

Catchwords:
[PROCEDURE] - civil - whether court should order the separate and prior determination of the question of the existence of a duty of care - all relevant factual material before the court.
[BUILDING AND CONSTRUCTION] - strata titles - whether defendants owed a common law duty of care - whether duty of care alleged is inconsistent with principle - whether appropriate for a trial judge to determine a common law duty of care owed to an owners corporation - whether decision in Bryan v Maloney (1995) 182 CLR 609 is authority for the existence of a duty of care.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes (Freehold Development) Act (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1
Bryan v Maloney (1995) 182 CLR 609
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
The Owners-Strata Plan No 43551 v Walter Construction Group (2004) 62 NSWLR 169
Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712
Stolfa v Owners Strata Plan 4366 [2010] NSWSC 1507
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Tyrell v Owners Corporation Strata Plan 40022 [2007] NSWCA 8
Young v Murphy [1996] 1 VR 279
Category: Principal judgment
Parties: Owners Corporation Strata Plan 61288 (Plaintiff)
Brookfield Multiplex Limited (ACN 008 687 063) (First Defendant)
Multiplex Corporate Agency Pty Ltd (ACN 003 070 120) (Second Defendant)
Representation: Counsel:
F C Corsaro SC / P J Bambagiotti (Plaintiff)
R G McHugh SC / T J Breakspear (Defendants)
Solicitors:
Grace Lawyers Pty Ltd (Plaintiff)
Gilbert + Tobin (Defendants)

File Number(s): 2008/290669

Judgment

HIS HONOUR: The plaintiff (the Owners Corporation) is the owners corporation of a strata title development at Chatswood (the serviced apartments development). That development is operated, under the name Mantra Chatswood Hotel, as serviced apartments available for public letting. The complex of which the development forms part was constructed by the first defendant (Brookfield) pursuant to a design and construct contract made with the developer, Chelsea Apartments Pty Ltd (Chelsea).

The Owners Corporation claims that Brookfield's work was defective, and that there are many defects in the common property of the serviced apartments development that require rectification. It sues Brookfield to recover the cost of rectification. Its cause of action is based upon an asserted common law duty of care.

The parties have asked that the question, as to whether there was owed the duty of care alleged, be determined separately from and before the determination of all other questions in the proceedings (UCPR r 28.2).

For the reasons that follow, I conclude that:

(1) the question of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1219
Decision Date: 10 October 2012

CaseChat Overview and Summary

The case before the court involved Owners Corporation Strata Plan 61288 as the plaintiff against Brookfield Multiplex, with the dispute centred on whether Brookfield Multiplex owed a common law duty of care to the plaintiff in relation to defects in the construction of a building. The case was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendants had failed to ensure that the building was constructed in a manner that was safe and without defects, and sought damages for the costs of rectifying these defects.

The primary legal issue before the court was whether Brookfield Multiplex owed a common law duty of care to the plaintiff. This involved determining whether such a duty, if it existed, was inconsistent with the principle of statutory liability under the Strata Titles Act. The court also had to consider whether it was appropriate for a trial judge to determine the existence of a common law duty of care owed to an owners corporation. Additionally, the court examined whether the decision in Bryan v Maloney (1995) 182 CLR 609 could be used as authority for the existence of a duty of care in the current context.

The court found that the existence of a common law duty of care owed by the defendants to the plaintiff was a question of law that could be determined by the court at the outset of the proceedings, rather than being reserved for a jury. The court held that the question of whether such a duty existed should be determined by the trial judge based on the relevant statutory framework and legal principles. The court also concluded that the decision in Bryan v Maloney was not directly applicable to the facts of this case. The court ultimately determined that the defendants did owe a common law duty of care to the plaintiff, which was not inconsistent with the statutory liability under the Strata Titles Act.

The final orders of the court were that the defendants were liable to the plaintiff for the costs associated with rectifying the defects in the building. The court ordered that the matter be referred back to the primary judge to determine the quantum of damages owed by the defendants to the plaintiff.

Orders