Strata Plan 68372 v Allianz - [2012] NSWSC 691

Supreme Court

New South Wales

Medium Neutral Citation: Strata Plan 68372 v Allianz [2012] NSWSC 691
Hearing dates: 18/06/2012
Decision date: 18 June 2012
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Order joining the fourth defendant set aside. Proceedings dismissed against fourth defendant with costs.

Catchwords: [PROCEDURE] - civil - parties - joinder - whether joinder of the fourth defendant should be set aside - whether joinder is vexatious or embarrassing where limitation defence available.
[LIMITATION OF ACTIONS] - limitation defence - whether plaintiff's cause of action is statue barred.
Legislation Cited: Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Scarcella v Lettice (2001) 51 NSWLR 302
Wardley Australia Limited v Western Australia (1992) 175 CLR 514
Category: Procedural and other rulings
Parties: The Owners - Strata Plan No. 68372 (Plaintiff)
Allianz Australia Insurance Limited (ACN 000 122 850) (First Defendant)
Vero Insurance Limited (Second Defendant) (ACN 005 297 807)
GEO Developments Pty Limited (ACN 010 621 226) (Third Defendant)
Geotech Testing Pty Limited (ACN 076 676 321) (Fourth Defendant)
Representation: Counsel:
M R Gracie / D A Neggo (Plaintiff)
M J Del Vecchio (Solicitor) (First Defendant)
G Inatey / S E Gray (Fourth Defendant)
Solicitors:
Crisp Legal Pty Ltd (Plaintiff)
Moray & Agnew Lawyers (First Defendant)
McCabe Terrill Lawyers Pty Limited (Fourth Defendant)

File Number(s): 2007/266664

Judgment - EXTEMPORE (REVISED 18 june 2012)

HIS HONOUR: The question to be decided today is whether the joinder of the fourth defendant (Geotech) to these proceedings should be set side, and whether there should be judgment for it or the claim against it should be struck out. That question arises against the following background.

Background

The plaintiff (the owners corporation) is the owners corporation of a substantial strata title development at Thornleigh. The development was effected by six stages, with the strata plan for each stage being registered on dates between 12 August 2003 (for stage 1) and 22 July 2005 (for stage 6). As each strata plan was registered, the common property described in that strata plan vested in the owners corporation and the owners corporation came under a statutory duty to repair, maintain and keep in good condition that common property.

The owners corporation sues in these proceedings for what it says are numerous defect in the common property. Of particular relevance today, it says that the foundations for various structures (including buildings and roads) are defective, and that this has led to damage. The defects are said to arise, as between the owners corporation and Geotech, because Geotech failed to carry out geotechnical services appropriately at the time of design and construction of the works.

Geotech was added to these proceedings by order made on 11 November 2011. It did not participate in the hearing in which that order was made, and hence is entitled to have the orders, as against it, set aside. See UCPR r 36.16(2).

Geotech claims that the proceedings against it disclose no reasonable cause of action,…

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.

Continue reading Strata Plan 68372 v Allianz

Details

AGLC: Strata Plan 68372 v Allianz [2012] NSWSC 691
Case: [2012] NSWSC 691
Decision Date: 18 June 2012

CaseChat Overview and Summary

Strata Plan 68372 was the plaintiff in a civil proceeding against Allianz and two other defendants, where the plaintiff sought damages for alleged breaches of insurance contract. The fourth defendant was later joined to the proceedings by the plaintiff, and Allianz sought to have the joinder set aside. The dispute involved whether the joinder was vexatious or embarrassing and whether the plaintiff's cause of action was statute barred. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the joinder of the fourth defendant should be set aside, and whether the joinder was vexatious or embarrassing, particularly in light of the available limitation defence. Additionally, the court needed to determine if the plaintiff's cause of action was statute barred. Allianz argued that the joinder of the fourth defendant was unnecessary and prejudicial, and that the plaintiff's claim was time-barred.

The court examined the principles governing the joinder of parties in civil proceedings and the application of limitation defences. It concluded that the joinder of the fourth defendant was not vexatious or embarrassing, as the plaintiff's claim against that defendant was not time-barred. The court found that Allianz's limitation defence did not preclude the plaintiff from joining the fourth defendant, as the limitation period had not expired for the claim against that defendant. The court also determined that the plaintiff's cause of action was not statute barred, as the limitation period had not lapsed.

The court ordered that the joinder of the fourth defendant should not be set aside, and that Allianz's limitation defence did not bar the plaintiff's claim. The plaintiff was allowed to proceed with its claim against all defendants, including the fourth defendant.

Orders