The Owners - Strata Plan 64757 v Sydney Remedial Builders Pty Ltd

[2021] NSWSC 536

Supreme Court

New South Wales

Medium Neutral Citation:	The Owners – Strata Plan 64757 v Sydney Remedial Builders Pty Ltd [2021] NSWSC 536
Hearing dates:	11 May 2021
Date of orders:	11 May 2021
Decision date:	14 May 2021
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Leave to amend Technology and Construction List Response granted
Catchwords:	PRACTICE AND PROCEDURE – application to amend List Response to allege proceedings out of time – whether building contract made date in Certificate of Practical Completion conclusive as to when completion took place
Legislation Cited:	Home Building Act 1989 (NSW)
Category:	Procedural rulings
Parties:	The Owners – Strata Plan 64757 (Plaintiff/Respondent) Sydney Remedial Builders Pty Ltd (Defendant/Applicant)
Representation:	Counsel: I G Roberts SC with D Byrne (Plaintiff/Respondent) E Peden SC (Defendant/Applicant) Solicitors: ITC Law (Plaintiff/Respondent) McLean & Associates (Defendant/Applicant)
File Number(s):	SC 2019/83317

Judgment

1. On 11 May 2021, I granted the defendant, Sydney Remedial Builders Pty Ltd, leave to amend its Technology and Construction List Response to include a claim that the proceedings were statute barred by reason of having been commenced more than seven years after the time limit specified in s 18E of the Home Building Act 1989 (NSW), in the form that it was at the relevant time.

2. The basis on which the plaintiff Owners Corporation resisted the proposed amendment was its contention that a plea that the proceedings are out of time is inconsistent with an admitted fact. The admitted fact relied upon was that the defendant issued a document called “Certificate of Practical Completion” on 16 March 2012, on a day less than seven years before the date on which the proceedings were commenced; 15 March 2019.

3. Mr Roberts SC, who appeared with Mr Byrne for the Owners Corporation, submitted that, on the proper construction of the relevant building contract, the defendant’s provision of a Certificate of Practical Completion was conclusive of the question of when practical completion took place.

4. Mr Roberts drew attention to cl 26.4 of the contract which provided that:

“If the owner pays the amount of the final progress claim…the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion”. [Emphasis in original.]

5. However, the contract defines “date of practical completion” as:

“[T]he date that is deemed to be the date of practical completion under Clause 26 except where the date is determined by dispute resolution (including litigation) then it is that date”. [Emphasis in original.]

6. Mr Roberts submitted that the reference in that definition to “dispute resolution” was a reference only to “dispute resolution” as defined in cl 39 of the contract. He further submitted that as the parties have not referred any dispute for “dispute resolution” pursuant to that clause, the exception in the definition of “date of practical completion” did not apply.

7. Clause 39 is brief and provides:

“Clause 39. Dispute Resolution

39.1   If a dispute arises then a party must give written notice to the other party setting out the matter in dispute.

39.2   The builder and the owner must meet within 10 working days of the giving of the notice to attempt to resolve the dispute or to agree on methods of so doing.

39.3   If the dispute is resolved the parties must write down the resolution and sign it.

39.4   The parties agree that anything done or said in the negotiation can not be revealed in any other proceeding.” [Emphasis in original.]

8. It was by no means clear to me, from reading these provisions, that the proper construction of the contract is that “dispute resolution”, where referred to in the definition of “date of practical completion”, means only “dispute resolution” for the purpose of cl 39.

9. In the definition of “date of practical completion”, “dispute resolution” is qualified by the expression “(including litigation)”, which expression finds no place in cl 39, although that clause contemplates that there may be “other proceedings”. [1]

   1. See cl 39.4.

10. In those circumstances, I was not satisfied that it was so clear that there was a tension between the defendant’s admission of sending a Certificate of Practical Completion and the assertion that completion took place earlier than is stated in its certificate, to warrant leave to amend being refused.

11. In any event, Dr Peden, for the defendant, foreshadowed an argument to the effect that the 16 March 2013 certificate was not a Certificate of Practical Completion for the purposes of cl 26 of the Contract. Final resolution of that question must await the hearing.

12. The orders I made on 11 May 2021 were, relevantly:

1. Grant leave to the Defendant to file an Amended List Response in the form that appears in Exhibit 1 at pp 43-50, save that the allegations which currently appear in cl 14(c) will now be incorporated into cl 14(b), thus making it clear that they relate only to the allegations contained in cl 14(b).

2. Parties to confer and agree on further directions.

3. The Defendant pay the costs thrown away by the Amendments.

4. The costs incurred by reason of the Defendant's Amended Notice of Motion of 19 February 2021 be the Plaintiff’s costs in the cause.

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Endnote

Decision last updated: 14 May 2021