Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66 Hearing dates: 2 March 2023 Decision date: 17 April 2023 Before: Ward P at [1];
Leeming JA at [2];
Simpson AJA at [108]Decision: 1. Grant leave to appeal to Parkview.
2. Direct Parkview to file a notice of appeal in accordance with the draft notice of appeal but otherwise dispense with the rules as to service.
3. Appeal dismissed.
4. Dismiss the summons filed by The Quay.
5. Parkview and The Quay to pay the costs of the Owners Corporation of the proceedings in this Court.
6. The Quay to pay half of Parkview’s costs of filing the notice of appeal.
Catchwords: BUILDING AND CONSTRUCTION – residential building work – statutory warranties under Home Building Act 1989 (NSW) – claims by owners corporation against builder and developer – whether claims statutory or contractual – whether single cause of action for breach of contract – whether amendments to introduce new defects more than six years after completion of building work should be permitted – consideration of Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730 holding that builder had res judicata defence when owners sought to raise further defects – consideration of amendments overturning result in Onerati – legislative amendments did not alter nature of claim for breach of contract – appeal from decision permitting owners corporation’s amendments dismissed
Legislation Cited: Australian Consumer Law, ss 18, 236
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, Pts 1A, 2, 3, 4
Civil Procedure Act 2005 (NSW), ss 56, 64, 65, 100, 101
Corporations Act 2001 (Cth), ss 181-183, 1317H, 1324
Design and Building Practitioners Act 2020 (NSW), s 37
Frustrated Contracts Act 1978 (NSW)
Home Building Act 1989 (NSW), ss 3C, 18A, 18B, 18BA, 18C, 18D, 18E, 18F, 18G, Pt 2C
Home Building Amendment (Statutory Warranties) Act 2006 (NSW)
Home Building Amendment (Warranties and Insurance) Act 2010 (NSW), Sch 1, items [2] and [3]
Interpretation Act 1987 (NSW), s 33
Limitation Act 1969 (NSW), s 14(1)(a)
Restraints of Trade Act 1976 (NSW)
Strata Schemes (Freehold Development) Act 1973 (NSW), s 18
Strata Schemes Management Act 1996 (NSW), s 11
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.53
Cases Cited: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38
Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43
Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd [2020] NSWCA 303
Baron Corporation Pty Ltd v Owners of Strata Plan 69567 [2013] NSWCA 238
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45
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- Case
- [2023] NSWCA 66
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the owners corporation's claims were to be characterised as contractual, and if so, whether the builder could rely on a defence of *res judicata* in light of previous proceedings concerning different defects. The court also had to consider the effect of legislative amendments to the *Home Building Act 1989* (NSW) on the nature of claims for breach of statutory warranties and whether these amendments altered the fundamental character of a claim for breach of contract.
The Court of Appeal, comprising Ward P, Leeming JA, and Simpson AJA, reasoned that while the *Home Building Act 1989* (NSW) imposes statutory warranties, the claims brought by the owners corporation were fundamentally contractual in nature. The court affirmed that legislative amendments intended to overturn the outcome in *Onerati v Phillips Constructions Pty Ltd (in liq)* did not alter the essential character of a claim for breach of contract. Therefore, the court held that the *res judicata* defence, as applied in *Onerati*, remained relevant to claims framed as contractual breaches, even if new defects were alleged. The court concluded that the primary judge had erred in permitting the amendments, as the claims, if contractual, were barred by *res judicata*.
Consequently, the Court of Appeal granted leave to appeal, directed the filing of a notice of appeal, and ultimately dismissed the appeal. The summons filed by The Quay was also dismissed. Parkview Constructions Pty Ltd and The Quay were ordered to pay the costs of the Owners Corporation, and The Quay was ordered to pay half of Parkview's costs for filing the notice of appeal.
Orders
Orders of the court
1. Grant leave to appeal to Parkview.
2. Direct Parkview to file a notice of appeal in accordance with the draft notice of appeal but otherwise dispense with the rules as to service.
3. Appeal dismissed.
4. Dismiss the summons filed by The Quay.
5. Parkview and The Quay to pay the costs of the Owners Corporation of the proceedings in this Court.
6. The Quay to pay half of Parkview’s costs of filing the notice of appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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