The Owners Corporation SP 90832 v Dyldam Developments Pty Ltd

The Owners Corporation SP 90832 filed a claim against Dyldam Developments Pty Ltd, the third defendant, an accredited certifier, for breach of the duty of care imposed by section 37 of the Design Act. The Owners Corporation alleged that the certifier carried out construction work in or related to a residential strata apartment complex. The third defendant denied that it had carried out construction work and argued that the Design Act could not apply because of the existence of a Practice Standard under the Certifiers Act. The court was required to determine whether the third defendant carried out "construction work" within the meaning of Part 4 of the Design and Building Practitioners Act 2020 (NSW) in respect of the development of the complex. During argument on the question, it emerged that the question would not conduce to the just, quick and cheap disposition of the real issues in the case because it was likely to cause delay and the answer lacked utility.

The court considered the purpose of the Design Act and the Certifiers Act, as well as the relevant definitions of "construction work" in each Act. The court found that the question was not useful in determining the real issues in the case, as the answer would not necessarily assist in resolving the parties' dispute. The court also noted that the question was unlikely to be determinative of the case, as the answer would not necessarily determine whether the third defendant had breached its duty of care under the Design Act. The court therefore revoked the order for determination of the separate question.