The Owners - Strata Plan 76841 v Ceerose Pty Ltd - [2016] NSWSC 1545

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2016] NSWSC 1545
Hearing dates: 29 September, 7 and 14 October 2016; further written submissions 18 and 24 October 2016
Decision date: 02 November 2016
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Leave to amend granted in part

Catchwords: PRACTICE AND PROCEDURE – amendment of pleadings –– whether amendment seeks to raise new cause of action – whether such cause of action statute barred – whether defendants irretrievably prejudiced by amendment in any event – CONTRACT – building contract – further defects alleged after expiration of limitation period – whether further building defects bespeak fresh cause of action
Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Home Building Act 1989 (NSW)
Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1
Conquer v Boot [1928] 2 KB 336
Creevey v Barrois [2005] NSWCA 264
Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423
GIO General Ltd v Love [2009] NSWCA 269
Honeywood v Munnings (2006) 67 NSWLR 466; NSWCA 215
Lane Cove Council v Michael Davies & Associates [2012] NSWSC 727
Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730
Owners Strata Plan 70030 v Decon Australia [2016] NSWSC 19
Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348
Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254
Weston v Publishing & Broadcasting Ltd (2011) 83 ACSR 206; NSWSC 433
Category: Procedural and other rulings
Parties: The Owners – Strata Plan 76841 (Plaintiff)
Ceerose Pty Ltd (First Defendant)
Prisand Pty Ltd (Second Defendant)
Representation:
Counsel:
F C Corsaro SC (Plaintiff)
D T Miller SC with M Sheldon (Defendants)
Solicitors:
Makinson & d’Apice Lawyers (Plaintiff)
Blackstone Waterhouse Lawyers (Defendants)

File Number(s): SC 2014/58603

Judgment

The plaintiff is an owners corporation responsible for the common property of a residential building in Waitara. The building is 8 storeys and comprises 64 residential lots.
The first defendant (Ceerose Pty Ltd) was the builder and the second defendant (Prisand Pty Ltd) the owner developer of the building. They are related companies. I will refer simply to “Ceerose”.
Construction commenced in September 2005. The strata plan was registered on 5 April 2006. A final occupation certificate was issued on 10 April 2006.
The Owners Corporation commenced these proceedings in the Consumer Trader and Tenancy Tribunal (“the Tribunal”) on 1 February 2012 alleging the existence of defects in the building work and breach by Ceerose of the statutory warranties implied in the building contract under s 18B of the Home Building Act 1989 (NSW) (“the HB Act”).
The proceedings were transferred from the Tribunal (by then, the New South Wales Civil and Administrative Tribunal) to the District Court of New South Wales in February 2014 and to this Court in May 2016.
The Owners Corporation now seeks to amend its claim in a manner that,…

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 1545
Decision Date: 02 November 2016

CaseChat Overview and Summary

The dispute in The Owners - Strata Plan 76841 v Ceerose Pty Ltd arose between the owners of a strata plan and the builders of the development, Ceerose Pty Ltd. The owners sought to amend their pleadings to include additional building defects which had been identified after the expiration of the limitation period. The primary legal issues were whether the amendment sought to raise a new cause of action, whether such a cause of action was statute barred, and whether the defendants were irretrievably prejudiced by the amendment.

The court found that the amendment did not seek to raise a new cause of action but was an attempt to add further particulars to an existing claim. The court also determined that the new building defects did not constitute a fresh cause of action but rather an extension of the existing claim. The court concluded that since the amendment did not introduce new legal principles, it did not require leave of the court under the Uniform Civil Procedure Rules. Furthermore, the court held that the defendants were not irretrievably prejudiced by the amendment as the additional defects were related to the same building works and did not alter the fundamental nature of the claim.

The court's reasoning led to the decision that the amendment was permissible and did not introduce a new cause of action. Consequently, the amendment was allowed, and the case proceeded to trial on the amended pleadings. The final orders of the court included permission for the plaintiffs to amend their pleadings to include the additional building defects and proceed with the case on those amended grounds.

Orders