Parkview Constructions Pty Ltd v The Owners - Strata Plan No 90018

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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

Cassaniti v Ball as liquidator of RCG CBD Pty Ltd…

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Details
Case
[2023] NSWCA 66
Decision Date

CaseChat Overview and Summary

Parkview Constructions Pty Ltd and The Quay (the appellants) appealed to the Court of Appeal of New South Wales against a decision that permitted The Owners - Strata Plan No 90018 (the respondent owners corporation) to amend its statement of claim. The dispute concerned claims by the owners corporation against the builder and developer for alleged defects in residential building work. The core of the dispute revolved around whether the owners corporation's claims were statutory or contractual in nature, and whether amendments introducing new defects, discovered more than six years after the completion of the building work, should be permitted.

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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