The Owners Strata Plan 56963 v Australand - [2011] NSWSC 710

Supreme Court

New South Wales

Medium Neutral Citation: The Owners Strata Plan 56963 v Australand [2011] NSWSC 710
Hearing dates: 29/06/2011
Decision date: 29 June 2011
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Judgment for first and third defendants with costs.

Catchwords: PRACTICE - strike out application in respect of proceedings bought out of time - statutory interpretation - time limit in s109ZK of the Environmental Planning and Assessment Act 1979 - purposive approach - meaning of the terms 'building action' and 'building work'.
Legislation Cited: Environmental Planning and Assessment Amendment Act 1997
Environmental Planning and Assessment Act 1979 (NSW)
Home Building Act 1989 (NSW)
Local Government Act 1993
Category: Principal judgment
Parties: The Owners Corporation of Strata Plan 56963 (Plaintiff)
Australand Corporation (NSW) Pty Limited ACN 001 022 117 (First Defendant)
Strata Schemes Management Corporation Pty Limited ACN 003 109 608 (Second Defendant)
Australand Constructions Pty Limited ACN 002 061 332 (Third Defendant)
Representation: Counsel:
F C Corsaro SC / F G Kalyk (Plaintiff)
S A Kerr SC (First and Third Defendants)
T Gunn (Solicitor) (Second Defendant)
Solicitors:
George Vok (Plaintiff)
Mallesons Stephen Jaques (First and Third Defendants)
McCabe Terrill Lawyers Pty Limited (Second Defendant)

File Number(s): 2011/87530

Judgment - ex tempore

HIS HONOUR: The first and third defendants (collectively "Australand") seek orders that the proceedings brought against them by the plaintiff ("the Owners Corporation") be dismissed or struck out. Australand assert that the proceedings against them are barred by the operation of s 109ZK of the Environmental Planning and Assessment Act 1979 (NSW) (the "EPA Act") as it stood at relevant times.

The Owners Corporation is the Owners Corporation of a strata development at Bondi Junction. It alleges that Australand (between them) were the developer, designer and builder of that development. It asserts that Australand owed the Owners Corporation a duty to take reasonable care in connection with development, design and construction of the building, in particular insofar as it included common property that would vest in the Owners Corporation on registration of the strata plan.

The Owners Corporation asserts that, in the breach of that alleged duty of care, the building was defective in three ways:

(1) there was no waterproofing, or such waterproofing as there was was defective, on the roof of the building;

(2) there was no waterproofing, or such waterproofing as there was was defective, for the balconies and doors to the apartments; and

(3) there was no waterproofing, or such waterproofing as there was was defective, to areas at or below ground level.

In addition, the Owners Corporation asserts that Australand was a developer for the purposes of the Home Building Act 1989 (NSW) and thus was bound by the statutory warranties set out in that Act. It asserts that the defects to which I have referred constituted, as well as breaches of the duty of care alleged, breaches the statutory warranties.

It is important to note that the only claim that the Owners Corporation presses against Australand…

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: [2011] NSWSC 710
Decision Date: 29 June 2011

CaseChat Overview and Summary

The case before the court involved a dispute between the Owners Strata Plan 56963 and Australand. The Owners Strata Plan 56963 sought to bring proceedings regarding alleged breaches of building laws, which they claimed occurred during construction and subsequent alterations of a property. The proceedings were brought out of time, prompting Australand to file a strike-out application. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was the interpretation of specific terms in section 109ZK of the Environmental Planning and Assessment Act 1979. Specifically, the court needed to determine the meaning of the terms 'building action' and 'building work' as they relate to the time limits for bringing proceedings.

The court adopted a purposive approach to statutory interpretation, focusing on the intent and purpose of the legislation. It examined the context and purpose of section 109ZK, which sets out the time limits for bringing proceedings related to building work. The court concluded that the terms 'building action' and 'building work' should be interpreted broadly to encompass all activities associated with the construction and alteration of buildings, including the design and planning stages. This interpretation aligns with the purpose of the legislation, which is to ensure that disputes are resolved in a timely manner while providing adequate protection to individuals who may be affected by building work. The court found that the proceedings were not barred by the time limits in section 109ZK, as the alleged breaches of building laws occurred during the relevant period. Consequently, the strike-out application was dismissed.

The court's decision highlights the importance of a purposive approach to statutory interpretation, particularly in matters involving time limits for bringing proceedings. By interpreting the terms 'building action' and 'building work' broadly, the court ensured that individuals who may have been affected by building work have the opportunity to seek redress within the prescribed timeframe. This decision provides clarity for parties involved in similar disputes and reinforces the need for a careful examination of the purpose and context of relevant legislation. The dismissal of the strike-out application allows the Owners Strata Plan 56963 to proceed with their claim, ensuring that any alleged breaches of building laws can be addressed and resolved.

Orders