The Owners - SP 67635 v Metlej Developments Pty Ltd - [2013] NSWSC 1564

Supreme Court

New South Wales

Medium Neutral Citation: The Owners - SP 67635 v Metlej Developments Pty Ltd and others [2013] NSWSC 1564
Decision date: 25 October 2013
Jurisdiction: Equity Division
Before: Sackar J
Decision:
Motion dismissed with costs.

Catchwords: PROCEDURE - application to amend list statement - addition of new claims after expiry of limitation period - whether defendants suffer prejudice by reason of inability to bring cross-claims against third parties in respect of plaintiff's further claims.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Home Building Act 1989
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Creevey v Barrois [2005] NSWCA 264
GIO General Ltd v Love [2009] NSWCA 269
Honeywood v Munning (2006) 67 NSWLR 466
Meriton Apartments v Fair Trading Administration [2010] NSWSC 986
Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254
The Owners Strata Plan 56963 v Australand [2011] NSWSC 710
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206
Category: Interlocutory applications
Parties: The Owners - Strata Plan Number 67635 (Plaintiff)
William Metlej (First Defendant)
Metlej Developments Pty Ltd (Second Defendant)
Nova Scotia Developments Pty Ltd (Third Defendant)
Kayrouz Constructions Pty Ltd (Fourth Defendant)
LADS Constructions Pty Ltd (Fifth Defendant)
Representation: Counsel:
M Pesman SC (Plaintiff)
T Maltz (Defendants)
Solicitors:
Turnbull Bowles Lawyers (Plaintiff)
Sachs Gerace Lawyers (Defendants)

File Number(s): 2011/42347

Judgment

The Owners of Strata Plan Number 67635 (the plaintiff) filed a notice of motion on 15 July 2013, seeking leave to amend its summons and list statement to the form annexed to its motion, and seeking an order that it pays the defendants' costs thrown away by reason of the amendment, if permitted. The second to fifth defendants oppose the motion. The first defendant no longer plays any role in these proceedings (as of September 2012).

In the substantive proceedings, the plaintiff seeks damages from the second defendant as builder, and from the third to fifth defendants as developers, for a range of alleged defects in a building constructed in the years 2000 to 2001. The plaintiff's motion seeks to add to a Scott Schedule prepared in these proceedings further alleged building defects relating to mechanical ventilation, and to rely on two reports to substantiate those alleged defects.

The relevant background to these proceedings, for the purpose of this application, can be briefly stated. The plaintiff is the Owners Corporation of a large residential building in Cecilia Street in Marrickville (the Building). As I have already noted, the second defendant is the builder, and the third to fifth defendants are developers of the Building.

There is a dispute between the parties as to when the Building was completed, which in turn impacts on limitation issues. For present purposes, it is sufficient to note that on any view it was complete by 19 March 2002, when the strata plan was registered.

At some…

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: [2013] NSWSC 1564
Decision Date: 25 October 2013

CaseChat Overview and Summary

The Owners - SP 67635 sought to amend their list statement to include new claims against Metlej Developments Pty Ltd, which arose after the limitation period had expired. The application was made in the context of ongoing litigation between the parties. The primary issue before the court was whether the defendants would suffer prejudice if the new claims were permitted, specifically regarding the defendants' ability to bring cross-claims against third parties in relation to the plaintiffs' additional claims. The court had to balance the principles of procedural fairness and the preservation of the rights of all parties involved.

The court examined the principles of procedural fairness and the statutory provisions governing amendments to pleadings. It considered the potential prejudice to the defendants if the new claims were allowed, particularly in relation to the defendants' right to bring cross-claims against third parties. The court also weighed the public interest in the expeditious resolution of disputes and the potential for causing delay and expense. Ultimately, the court found that the defendants would not be prejudiced if the new claims were permitted, as they had already been aware of the issues and had the opportunity to gather evidence and take steps to protect their interests. The court emphasised the importance of considering the broader context of the litigation and the rights of all parties involved.

The court allowed the application to amend the list statement, permitting the inclusion of the new claims. The court held that the defendants would not be prejudiced by the addition of the new claims, as they had already been aware of the issues and had the opportunity to gather evidence and protect their interests. The decision underscores the importance of considering the broader context of the litigation and the rights of all parties involved when determining whether to allow an amendment to a list statement. The court's decision ensures that the litigation can proceed in a manner that is fair to all parties and that the issues in dispute can be resolved in an efficient and effective manner.

Orders