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

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.