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Strata Plan 87060 v Loulach Developments Pty Ltd

Strata Plan 87060 v Loulach Developments Pty Ltd

Case [2020] NSWSC 550 13 May 2020

Appeal

Amendment of Pleadings

Misnomer or Misdescription

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550
Hearing dates: 6 May 2020
Date of orders: 13 May 2020
Decision date: 13 May 2020
Jurisdiction: Equity - Technology and Construction List
Before: Henry J
Decision:
(1) Pursuant to ss 64(1)(b) and 65(2)(b) of the Civil Procedure Act 2005 (NSW), grant leave to the plaintiff to amend its summons and technology and construction list statement to join Loulach Steel Pty Ltd as the second defendant and name it as the builder in substitution for Loulach Developments Pty Ltd, with the amendments to take effect from 26 June 2019.
(2)   The plaintiff to file and serve an amended summons and further amended technology and construction list statement on the defendant and Loulach Steel Pty Ltd by 20 May 2020.
(3)   List the proceedings for directions in the Technology and Construction List at 12.00pm on 22 May 2020.
(4)   Costs of the plaintiff’s notice of motion filed on 18 December 2019 be costs in the cause.

Catchwords: CIVIL PROCEDURE - parties - misnomer or misdescription - application to amend - where owners corporation intended to sue builder for alleged defects but mistakenly named the incorrect entity in summons and list statement - whether builder prejudiced from loss of viable cross-claims - where builder on notice of mistake, defects and proceedings - no delay in making application to amend - prejudice to owners corporation if leave not granted - dictates of justice favour granting leave to amend
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64, 64(1)(b), 64(2), 65, 65(2)(b), 65(3), 98(1)
Home Building Act 1989 (NSW), ss 3B, 3C, 18B, 18B(2), 18E, Sch 4, cl 109
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45
Chahwan v Euphoric Pty Ltd [2009] NSWSC 805
Creevey v Barrois [2005] NSWCA 264
Greenwood v Papademetri [2007] NSWCA 221
Owners – SP 74602 v Brookfield Australia Investments Limited [2015] NSWSC 1916
Owners Corporation Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140
Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579
Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254
The Owners – SP 67635 v Metlej Developments Pty Limited [2013] NSWSC 1564
The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2016] NSWSC 1545
Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, Lexis Nexis Butterworths)
Category: Procedural and other rulings
Parties: Strata Plan 87060 trading as The Owners – Strata Plan No. 87060 (Plaintiff)
Loulach Developments Pty Ltd (Defendant)
Loulach Steel Pty Ltd (Third party respondent)
Representation:
Counsel:
D Weinberger (Plaintiff)
T Maltz (Third party respondent)
Solicitors:
J S Mueller & Co (Plaintiff)
Centurion Lawyers (Third party respondent)

File Number(s): 2019/198332
Publication restriction: Nil.

Judgment

The plaintiff, Strata Plan…

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 87060 v Loulach Developments Pty Ltd

Details

AGLC: Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550
Case: [2020] NSWSC 550
Decision Date: 13 May 2020

CaseChat Overview and Summary

In this case, the owners corporation for Strata Plan 87060 sought to amend its summons and list statement to correctly name Loulach Developments Pty Ltd as the defendant. The corporation intended to sue Loulach for alleged defects in the construction of a building but had mistakenly named another entity in the initial documents. The builder, Loulach, was already aware of the proceedings, the defects, and the misnomer. The builder argued that it would be prejudiced by the loss of viable cross-claims if the amendment was allowed. The owners corporation, however, contended that it would be prejudiced if the amendment was not permitted.

The court needed to determine whether the misnomer and misdescription in the summons and list statement were such that they could be amended to rectify the error. Additionally, the court had to assess whether the builder would be prejudiced by the amendment and whether the owners corporation would suffer undue prejudice if the amendment was not allowed. The court also considered the broader question of whether the dictates of justice favoured granting leave to amend the documents.

The court held that the misnomer and misdescription were not fatal to the proceedings and could be corrected through an amendment. The builder's potential loss of viable cross-claims was not a sufficient ground to deny the amendment, especially since the builder was already on notice of the proceedings and the defects. The court further found that the owners corporation would be prejudiced if the amendment was not granted, as it would be unable to pursue its claim against the correct defendant. The court concluded that the amendment should be allowed as it was in the interests of justice to do so. As a result, the court granted leave to amend the summons and list statement to correctly name Loulach Developments Pty Ltd as the defendant.

Orders