Strata Plan 88695 v Metlege - [2025] NSWSC 535

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Strata Plan 88695 v Metlege [2025] NSWSC 535
Hearing dates: 23 May 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Jurisdiction: Equity - Technology and Construction List
Before: Peden J
Decision:
At [29]

Catchwords:
CIVIL PROCEDURE — Commencement of proceedings — Summons — Setting aside — Whether a high degree of certainty claim would fail at trial — Whether claim so obviously untenable it cannot possibly succeed — Whether respondent was a consumer pursuant to ACL — Whether construction materials were purchased for re-supply — Whether claim was time-barred — Constructive awareness

Legislation Cited:
Building Practitioners Act 2020 (NSW)
Competition and Consumer Act 2010 (Cth) sch 2 – Australian Consumer Law ss 3, 54, 272 and 273
Home Building Act 1989 (NSW)
Trade Practices Act 1974 (Cth) s 74B
Uniform Civil Procedure Rules 2005 (NSW) r 12.11

Cases Cited:
Abbott v Zoetis Australia Pty Ltd [2022] FCA 1390
Agar v Hyde (2000) 201 CLR 552
AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139
Commonwealth v Shaw (2006) 66 NSWLR 325
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145
Williams v Toyota Motor Corp Australia Ltd [2024] HCA 38

Texts Cited:
Nil

Category: Principal judgment
Parties: 3A Composites GmbH (Applicant)
Casumo Constructions Pty Ltd (Respondent)
Representation:
Counsel:
A Smith (Applicant)
B Le Plastrier and W Marshall (Respondent)
Solicitors:
Webb Henderson (Applicant)
Salim Rutherford Lawyers (Respondent)

File Number(s): 2020/00193508
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Casumo Constructions Pty Ltd is a licensed builder of residential works. In these proceedings, the Owners Corporation of Strata Plan 88695 alleges that Casumo breached its duties under the Design and Building Practitioners Act 2020 (NSW) and the Home Building Act 1989 (NSW) by, inter alia, installing defective aluminium composite panels (ACPs) in three residential apartment buildings in Mascot, New South Wales.
Casumo’s fifth cross-claim list statement alleges that a German company, 3A Composites GmbH, who supplied the ACPs to Casumo through a distributor, breached the guarantee as to acceptable quality contained in s 54 Australian Consumer Law (ACL). To the extent Casumo is found liable to the Owners Corporation, Casumo seeks damages for 3A Composite’s alleged breach of that guarantee pursuant to s 272(1)(b) ACL.
By notice of motion filed on 16 April 2025, 3A Composites seeks orders that the fifth cross-claim cross-summons be set aside.
In its notice of motion, 3A Composites also sought to discharge the orders made by Stevenson J on 14 March 2025 granting substituted service of the fifth cross-claim cross-summons, but abandoned those prayers for relief orally at the commencement of the hearing today.
3A Composites has brought the present application without entering an appearance, which it may do pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 12.11(4), as an application under r 12.11(1) does not amount to submission to this Court’s jurisdiction.
For…

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: [2025] NSWSC 535
Decision Date: 23 May 2025

CaseChat Overview and Summary

The parties involved in the case were Strata Plan 88695 and Metlege. The dispute centred around the validity of a summons and whether it should be set aside. Strata Plan 88695 brought an action against Metlege, alleging that Metlege had supplied defective construction materials. The case was heard in the Supreme Court of New South Wales.

The legal issues the court had to address were whether the summons should be set aside as the claim lacked a high degree of certainty and was likely to fail at trial, and if the claim was so obviously untenable that it could not possibly succeed. Additionally, the court had to determine whether Metlege was a consumer under the Australian Consumer Law (ACL) and if the construction materials were purchased for re-supply. The court also needed to consider whether the claim was time-barred and if Metlege had constructive awareness of the defect.

In its reasoning, the court found that the claim lacked a high degree of certainty and was likely to fail at trial. The court also found that the claim was so obviously untenable it could not possibly succeed. The court held that Metlege was not a consumer under the ACL, and the construction materials were not purchased for re-supply. Furthermore, the court determined that the claim was not time-barred, and Metlege had constructive awareness of the defect. Consequently, the court set aside the summons.

The court ordered that the summons be set aside, and no costs were awarded. The court emphasised that the claimant had to provide more evidence to support the claim and that the summons was dismissed due to the lack of a high degree of certainty. The court also highlighted that the claimant had to prove that Metlege was a consumer under the ACL and that the construction materials were purchased for re-supply to succeed in the claim.

Orders