Presser v Ocean View Properties Pty Ltd

The matter involved Presser, the purchaser of a penthouse apartment, and Ocean View Properties Pty Ltd, the developer. The dispute arose from the sale of a penthouse apartment in a residential complex, with Presser alleging defects in the parquetry flooring. Despite a Settlement Agreement where the developer agreed to rectify defects, Presser initiated proceedings against the developer for breach of the Settlement Agreement, and subsequently sought to add other parties, including the builder, sub-contractor, and architect, to the proceedings. The developer applied for a stay of proceedings under section 57 of the Domestic Building Contracts Act 1995, arguing that the proceeding was not an "action arising wholly or predominantly from a domestic building dispute."

The court was required to determine whether the proceeding was an "action arising wholly or predominantly from a domestic building dispute" as defined by sections 3, 5, 54(1), and 57 of the Act. The developer argued that the proceeding, as it stood, did not meet this definition and was therefore not subject to the provisions of the Act. The court considered the nature of the original dispute, the terms of the Settlement Agreement, and the additional claims brought against the builder, sub-contractor, and architect.

The court found that the original dispute over the defective parquetry flooring was indeed a domestic building dispute. However, the court also found that the subsequent proceeding against the developer for breach of the Settlement Agreement was not an action "arising wholly or predominantly from a domestic building dispute" as it was primarily about the developer's alleged failure to fulfill its obligations under the Settlement Agreement. Furthermore, the addition of the builder, sub-contractor, and architect to the proceeding complicated the matter, as it introduced new issues unrelated to the original domestic building dispute. The court held that the developer's application for a stay of proceedings should be granted.

The court granted the developer's application for a stay of proceedings. The matter was to be remitted to the original forum for the determination of the developer's application to strike out the claims against it.