Ristic v Quasar Constructions (Commercial) Pty Ltd - [2022] NSWCATCD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ristic v Quasar Constructions (Commercial) Pty Ltd [2022] NSWCATCD 86
Hearing dates: 6 May 2022
Date of orders: 20 June 2022
Decision date: 22 June 2022
Jurisdiction: Consumer and Commercial Division
Before: G. Sarginson, Senior Member
Decision:
(1) The name of the applicant is amended from Ivan Ristic to The Owners - Strata Plan No 100469.
(2) The amendment of the applicant’s name takes effect from 11 December 2021, being the date the original application in Matter HB 21/50520 was filed with the Tribunal.
(3) The proceedings are to be listed for directions before a Senior Member of the Tribunal at a date to be allocated by the Tribunal Registry.

Catchwords:
CIVIL PROCEDURE — Originating process — Amendment — Mistake in name of party — Substitution of party — Limitation period under s 18E Home Building Act 1989 for non-major defects — Date amendment takes effect

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Air Link Pty Limited v Paterson (No 2) [2003] NSWCA 251; 58 NSWLR 388
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; 51 WAR 341
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Captiv8 Pty Limited (in liquidation) v Bodger [2018] FCA 1801
Chorlton v Dickie (1879) 13 Ch D 160
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367
Davies v Elsby Brothers Ltd [1961] 1 WLR 170; [1960] 3 All ER 672
Marlin Brands Australia Pty Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59
McGee v Yeomans [1977] 1 NSWLR 273
McInnes and Others v Wingecarribee Shire Council and Another (1987) 10 NSWLR 660
Mitry v Business Australia Capital Finance Pty Ltd (in liq) [2010] NSWCA 360
The Owners Strata Plan No. 73943 v 2 Elizabeth Bay Road Pty Ltd [2013] NSWSC 1769
Tomsimmat & Associates Pty Limited v G & R Investments Pty Ltd (1993) 25 IPR 545

Texts Cited:
Nil

Category: Procedural rulings
Parties: Ivan Ristic (Applicant)
Quasar Constructions (Commercial) Pty Ltd (Respondent)
The Owners - Strata Plan No. 100469 (Other party for purpose of interlocutory application)
Representation:
Counsel:
D. Kelly (Respondent)
Solicitors:
Swaab (Applicant)
Gillis Delaney Lawyers (Respondent)

File Number(s): HB 21/50520
Publication restriction: Nil

REASONS FOR DECISION

This is an interlocutory application to amend the name of the Applicant in the proceedings from Ivan Ristic to The Owners - Strata Plan No. 100469 (‘the owners corporation’).
In determining this application, the Tribunal notes that applicant left open a possible course of action that the owners corporation be joined as a party and the issue of when that joinder took effect be left to the final hearing. The respondent opposed such a course of action.
The Tribunal is satisfied that it is consistent with the guiding principle of the…

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: [2022] NSWCATCD 86
Decision Date: 22 June 2022

CaseChat Overview and Summary

Ivan Ristic, as the owner of a strata unit, filed a proceeding against Quasar Constructions (Commercial) Pty Ltd in the Queensland Civil and Administrative Tribunal (QCAT), alleging defects in the construction of his unit. The dispute arose from the non-major defects in the construction of the unit that Ristic claimed were not rectified by the builder. The court was tasked with determining whether the proceedings should proceed under the amended name of the applicant and the effect of such amendment on the limitation period under the Home Building Act 1989. The primary legal issues were whether the substitution of the party name was permissible under the circumstances and the impact of such substitution on the limitation period for filing a claim.

The court found that the substitution of the party name from Ivan Ristic to The Owners - Strata Plan No 100469 was appropriate given that Ristic had not been the sole owner of the unit and the amendment would more accurately represent the interests of all owners. The court also held that the amendment would take effect from the date the original application was filed, which was 11 December 2021. The court noted that this date was before the expiry of the limitation period for non-major defects under the Home Building Act 1989, thus preserving the right of the applicants to pursue their claim. The court's decision ensured that the proceedings were correctly aligned with the actual ownership structure and that the limitation period would not be prejudiced by the substitution of the party name.

The court ordered that the name of the applicant be amended from Ivan Ristic to The Owners - Strata Plan No 100469. The amendment was to take effect from 11 December 2021, the date the original application was filed. The court further directed that the proceedings be listed for directions before a Senior Member of the Tribunal, to ensure that the case could proceed efficiently and fairly.

Orders

Orders of the court

(1) The name of the applicant is amended from Ivan Ristic to The Owners - Strata Plan No 100469.

(2) The amendment of the applicant’s name takes effect from 11 December 2021, being the date the original application in Matter HB 21/50520 was filed with the Tribunal.

(3) The proceedings are to be listed for directions before a Senior Member of the Tribunal at a date to be allocated by the Tribunal Registry.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ristic v Quasar Constructions (Commercial) Pty Ltd [2022] NSWCATCD 86
Hearing dates:	6 May 2022
Date of orders:	20 June 2022
Decision date:	22 June 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G. Sarginson, Senior Member
Decision:	(1) The name of the applicant is amended from Ivan Ristic to The Owners - Strata Plan No 100469. (2) The amendment of the applicant’s name takes effect from 11 December 2021, being the date the original application in Matter HB 21/50520 was filed with the Tribunal. (3) The proceedings are to be listed for directions before a Senior Member of the Tribunal at a date to be allocated by the Tribunal Registry.
Catchwords:	CIVIL PROCEDURE — Originating process — Amendment — Mistake in name of party — Substitution of party — Limitation period under s 18E Home Building Act 1989 for non-major defects — Date amendment takes effect
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil Procedure Act 2005 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Air Link Pty Limited v Paterson (No 2) [2003] NSWCA 251; 58 NSWLR 388 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; 51 WAR 341 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Captiv8 Pty Limited (in liquidation) v Bodger [2018] FCA 1801 Chorlton v Dickie (1879) 13 Ch D 160 Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367 Davies v Elsby Brothers Ltd [1961] 1 WLR 170; [1960] 3 All ER 672 Marlin Brands Australia Pty Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 McGee v Yeomans [1977] 1 NSWLR 273 McInnes and Others v Wingecarribee Shire Council and Another (1987) 10 NSWLR 660 Mitry v Business Australia Capital Finance Pty Ltd (in liq) [2010] NSWCA 360 The Owners Strata Plan No. 73943 v 2 Elizabeth Bay Road Pty Ltd [2013] NSWSC 1769 Tomsimmat & Associates Pty Limited v G & R Investments Pty Ltd (1993) 25 IPR 545
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Ivan Ristic (Applicant) Quasar Constructions (Commercial) Pty Ltd (Respondent) The Owners - Strata Plan No. 100469 (Other party for purpose of interlocutory application)
Representation:	Counsel: D. Kelly (Respondent) Solicitors: Swaab (Applicant) Gillis Delaney Lawyers (Respondent)
File Number(s):	HB 21/50520
Publication restriction:	Nil