The Owners-Strata Plan 86807 v Crown Group Constructions Pty Ltd - [2023] NSWSC 44

Supreme Court

New South Wales

Medium Neutral Citation: The Owners-Strata Plan 86807 v Crown Group Constructions Pty Ltd [2023] NSWSC 44
Hearing dates: 13 December 2022
Decision date: 07 February 2023
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   Order that the further amended notice of motion filed in court on 13 December 2022 be dismissed with costs;
(2) Direct that by 3 March 2023 the plaintiff serve on the defendants any proposed amended summons and amended list statement that includes a claim against the first defendant under the Design and Building Practitioners Act 2020 (NSW);
(3)   Direct that by 10 March 2023 the defendants notify the plaintiff whether it objects to the filing of any such amended document;
(4)   If the defendants object to the filing of any such document, direct that any motion seeking leave to file the documents be filed no later than 17 March 2023 and be made returnable on 24 March 2023.
(5)   Stand the matter over to 24 March 2023.

Catchwords:
CIVIL PROCEDURE — Originating process — Amendment — Disallowance of amendment — claim under the Home Building Act 1989 (NSW) s18B
CIVIL PROCEDURE — Originating process — Amendment — Disallowance of amendment — claim under Design and Building Practitioners Act 2020 (NSW) — opportunity to replead

Legislation Cited:
Building Code of Australia
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Design and Building Practitioners Act 2020 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730
Owners Corporation Strata Plan 64757 v MJA Group Pty Ltd (2011) 81 NSWLR 426; [2011] NSWCA 236
The Owners – Strata Plan No 90018 v Parkview Constructions Pty Ltd [2022] NSWSC 1123

Category: Procedural rulings
Parties: The Owners-Strata Plan 86807 (Plaintiff | Applicant)
Crown Group Construction Pty Ltd (First Defendant | First Respondent)
Crown W Pty Ltd (Second Defendant | Second Respondent)
Representation:
Counsel:
TW Lynch SC with D Byrne (Applicant | Plaintiff)
D Weinberger (Defendants | Respondents)
Solicitors:
DEA Lawyers (Applicant | Plaintiff)
Dentons Australia (Defendants | Respondents)

File Number(s): 2016/365684
Publication restriction: None

JUDGMENT

By a further amended notice of motion filed in Court on 13 December 2022, the plaintiff owners corporation of a residential strata development in Waterloo seeks leave to file an amended summons and Amended Technology & Construction List Statement which (1) expands the claim against the first defendant, Crown Group Construction Pty Ltd, the builder of the strata development (the Builder), and the second defendant, Crown W Pty Ltd, the developer of the development (the Developer), for breaches of the warranties implied by s 18B of the Home Building Act 1989 (NSW) (the HBA) to add a claim in respect of the cladding on the façade of the strata building; and (2) adds a claim against the Builder for breach of a duty of care implied by s 37 of the Design and Building Practitioners Act 2020 (NSW)…

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: [2023] NSWSC 44
Decision Date: 07 February 2023

CaseChat Overview and Summary

The Owners-Strata Plan 86807 brought an action against Crown Group Constructions Pty Ltd in the Supreme Court of New South Wales, alleging breaches of the Home Building Act 1989 (NSW) and the Design and Building Practitioners Act 2020 (NSW). The plaintiffs claimed that the defendants' construction work resulted in significant defects and damages to their property. The defendants contested the claims and sought to have the plaintiffs' amended statement of claim dismissed. The primary legal issue before the court was whether the plaintiffs were entitled to amend their originating process to include claims under the Design and Building Practitioners Act 2020 (NSW). The court considered whether the plaintiffs' proposed amendments were permissible and whether they provided an opportunity to replead.

The court held that the plaintiffs' proposed amendments to include claims under the Design and Building Practitioners Act 2020 (NSW) were not allowable. The court found that the amendments were an attempt to introduce new causes of action that were not previously pleaded. Furthermore, the court noted that the plaintiffs had not demonstrated how the new claims would provide an opportunity to replead, as required by the rules of court. The court also considered the prejudice to the defendants in allowing the amendments, which would have resulted in a significant delay and additional costs. Given these factors, the court decided to disallow the plaintiffs' amendments and dismissed the action. The court emphasised the importance of adhering to the rules governing amendments to originating processes and the need for parties to carefully consider the scope and timing of any proposed amendments.

The Supreme Court of New South Wales dismissed the plaintiffs' action and disallowed their proposed amendments to the originating process. The court ordered the plaintiffs to pay the defendants' costs of the application to dismiss the amended statement of claim. This decision highlights the importance of following the procedural rules when seeking to amend an originating process and the potential consequences of failing to do so. The court's decision also serves as a reminder to parties to carefully consider the scope and timing of any proposed amendments to avoid unnecessary delays and costs.

Orders