The Owners - Strata Plan 70030 v Decon Australia - [2016] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan 70030 v Decon Australia [2016] NSWSC 19
Hearing dates: 1 February 2016
Date of orders: 01 February 2016
Decision date: 01 February 2016
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Grant plaintiff leave to amend list statement and to rely upon further evidence.

Catchwords: PRACTICE AND PROCEDURE – Claim for defective work – Notice of Motion application to rely on Amended List Statement – Whether leave should be granted to plaintiff rely on Amended List Statement and further allegations of defective work – Whether leave should be granted to rely upon further export reports – Balance of justice weighted in favour of plaintiff – Leave granted
Legislation Cited: Home Building Act 1989 (NSW)
Cases Cited: Onerati v Phillips Constructions Pty Ltd (1989) 16 NSWLR 730
Category: Procedural and other rulings
Parties: The Owners – Strata Plan No 70030 (Plaintiff)
Decon Australia Pty Ltd (First Defendant)
Eissa Soliman Tadros (Second Defendant)
Afaf Aziz Tadros (Third Defendant)
Shawki Hanna Gad (Fourth Defendant)
Lily Aziz Gad (Fifth Defendant)
Representation:
Counsel:
D Feller SC / I D George (Plaintiff)
T J Davie (Second to Fifth Defendants)
Solicitors:
Spinks Elphick Ho (Second to fifth defendants)
Peter Merity Solicitor Pty Limited (Plaintiff)

File Number(s): 2014/179564

Judgment (ex tempore – revised 1 february 2016)

HIS HONOUR: The plaintiff (the Owners Corporation) is the owners corporation of a strata title development at Narrabeen. The second to fifth defendants (the developers) are (or at least I assume that they may be regarded as) the "developers", for the purposes of the Home Building Act 1989 (NSW), for whom that development was undertaken. The first defendant (Decon) was the builder who carried out the work. It did so pursuant to a contract with the developers, who were at the relevant time the proprietors of the land on which the work was executed. The developers are, in proportions which it is unnecessary to set out, proprietors of some six of the fifteen residential lots in the development.
The Owners Corporation's claim is for defective work. It sues on the statutory warranties given by s18B of the Home Building Act.
The proceedings have a history which can best be described as appalling. Practical completion occurred on 11 February 2003. The occupation certificate was issued seven days later, and the strata plan was registered on 20 March 2003. The application was not filed until 24 August 2009. It was filed in the Consumer, Trader and Tenancy Tribunal (CTTT). A Mr Ian Jones acted for the Owners Corporation.
Notwithstanding the delayed commencement of proceedings (which might be thought to indicate some reflection by the Owners Corporation and Mr Jones upon the subject matters of their complaints), the Owners Corporation failed lamentably to comply with directions given from time to time by the CTTT. It appears to be uncontentious that the Owners Corporation failed to comply with directions given on nine occasions between 15 March 2010 and 17…

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: [2016] NSWSC 19
Decision Date: 01 February 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, The Owners - Strata Plan 70030 commenced proceedings against Decon Australia, alleging defective work in relation to the construction of a building. The dispute centred on the quality of the workmanship and materials used, with the plaintiff claiming that the defendant's actions breached contractual obligations and resulted in significant damages. The court was tasked with determining whether the plaintiff could rely on an Amended List Statement and additional allegations of defective work, as well as further export reports, in its claim against the defendant.

The primary legal issues before the court were whether the plaintiff should be granted leave to rely on the Amended List Statement and the further allegations of defective work, and whether leave should be granted to rely upon the additional export reports. The defendant argued that these additional allegations and documents were not properly disclosed or allowed under the court's case management rules, and that allowing them would prejudice the defendant's right to a fair trial. The plaintiff, on the other hand, contended that the balance of justice favoured permitting the additional evidence, as it was necessary to fully address the issues at hand and ensure a just outcome.

The court considered the principles of case management and the overriding objective of achieving justice in the circumstances. It found that the balance of justice weighed in favour of granting the plaintiff leave to rely on the Amended List Statement and the further allegations of defective work, as well as the additional export reports. The court acknowledged that the defendant had been prejudiced to some extent by the late disclosure of these materials, but determined that the prejudice was not insurmountable and could be mitigated through appropriate orders. The court also considered the importance of allowing the plaintiff to present its full case and the potential for significant injustice if the additional evidence was not permitted.

Accordingly, the court granted leave to the plaintiff to rely on the Amended List Statement and further allegations of defective work, as well as the additional export reports. The court ordered that the defendant be given a reasonable opportunity to respond to the new evidence and that any necessary adjournments be scheduled to accommodate this. The court emphasised the importance of adhering to case management rules and timely disclosure of evidence, but recognised that exceptions may be warranted in the interests of justice. The court's decision ensured that the plaintiff could present its full case and that the defendant had a fair opportunity to address the new allegations and evidence.

Orders