The Owners Strata Plan 50946 v Multiplex Constructions (NSW) Pty Ltd & Ors - [2007] NSWSC 1308

CITATION: The Owners Strata Plan 50946 v Multiplex Constructions (NSW) Pty Ltd & Ors [2007] NSWSC 1308

HEARING DATE(S): 16/11/07

JUDGMENT DATE :
19 November 2007

JURISDICTION: Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Application for separate question order dismissed.

CATCHWORDS: Practice and Procedure - Separate question orders - Principles - Application of principles

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED: ABB v Freight Rail [1999] NSWSC 1037
CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2006] HCA Trans 534
Energy Australia v Australian Energy Ltd [2001] FCA 1049
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; [2005] NSWSC 1273
Liberty Financial Pty Ltd v Scott [2003] FCA 226
Olbers Co Ltd v Commonwealth of Australia (No 3) [2003] FCA 651
Perre v Apand Pty Ltd (1999) 198 CLR 180
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8
Waste Recycling and Processing Corporation v United Resource Management Pty Limited [2006] NSWSC 1140

PARTIES: The Owners Strata Plan 50946 (Plaintiff)
Multiplex Constructions (NSW) Pty Limited (First Defendant)
Jaguar Investments (NSW) Pty Limited (Second Defendant)
Scott Wilson Irwin Johnston Pty Limited (Third Defendant)
Strasser Poli Little & Associates Pty Limited (Fourth Defendant)
Trevor R Howse & Associates Pty Limited (Fifth Defendant)
Multiplex Limited (Sixth Defendant)

FILE NUMBER(S): SC 55046/02

COUNSEL: Dr AS Bell (Plaintiff)
Mr M Rudge SC, Mr D Sibtain (First and Sixth Defendants)
Ms C Sainsbury (Fifth Defendant)

SOLICITORS: Blake Dawson Waldron (Plaintiff)
Gilbert & Tobin (First and Sixth Defendants)
Hunt & Hunt (Fifth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Monday 19 November 2007

55046/02 The Owners Strata Plan No 50946 v Multiplex Constructions (NSW) Pty Limited & Ors

JUDGMENT

The notice of motion

1 The first and sixth defendants supported by the fifth defendant, seek an order for the separate hearing of the question of quantification of the amount of damages (if any) payable by the first and fifth defendants in respect of particular paragraphs of the Technology and Construction List Statement filed in November 2007 or by the cross-defendants in respect of the corresponding paragraphs of any cross-claims filed in the proceedings.

The principles

2 There was no serious issue as to the principles which inform the exercise of the discretion to order a separate question. The following may be said:

i. The Court may direct the order in which questions of fact are to be tried. Such direction should be consistent with the overriding purpose of the Civil Procedure Act and of the rules of the Court, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In making directions as…

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: [2007] NSWSC 1308
Decision Date: 19 November 2007

CaseChat Overview and Summary

In the Supreme Court of New South Wales, The Owners Strata Plan 50946 sought to resolve a dispute with Multiplex Constructions (NSW) Pty Ltd and others regarding defects in a strata building. The plaintiffs alleged that the building had numerous defects that the defendants, as the construction company, were responsible for under their building contract. The case focused on whether the plaintiffs were entitled to separate question orders to determine specific issues before proceeding with the full trial of the matter.

The primary legal issue before the court was whether the plaintiffs were entitled to separate question orders to determine liability for defects, the extent of those defects, and the cost of rectifying them. The defendants argued that such orders were not appropriate as they would fragment the trial process and potentially prejudice their right to a fair trial. The court needed to balance the principles guiding the grant of separate question orders against the overarching need for an efficient and fair trial process.

The court held that separate question orders were not appropriate in this case. It emphasised the importance of a comprehensive trial to address all issues in the dispute. The court reasoned that separate question orders could lead to piecemeal litigation and did not align with the principles of efficient and fair trial management. The court acknowledged the plaintiffs' desire to clarify specific issues but found that these issues were inherently interconnected and best resolved in a single trial. Consequently, the application for separate question orders was dismissed.

The court's final orders reflected its decision, denying the plaintiffs' application for separate question orders. The case was to proceed to a full trial, where all issues of liability, extent of defects, and rectification costs would be determined. The court's ruling underscored the importance of maintaining a coherent trial process and ensuring that all parties have the opportunity to present their cases comprehensively.

Orders