The Owners-Strata Plan 91349 v Hallmark Construction Pty Ltd - [2019] NSWSC 591

Supreme Court

New South Wales

Medium Neutral Citation: The Owners-Strata Plan 91349 v Hallmark Construction Pty Ltd [2019] NSWSC 591
Hearing dates: 15 May 2019
Decision date: 22 May 2019
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   The following paragraphs of the amended technology and construction list statement filed on 15 March 2019 be struck out:

(a)   as against the first defendant: 26, 27(e), 28, 58-59, 63-64, 91-95, 96-98 and 113-117;
(b)   as against the second defendant: 5(b), 27(a), 56-59, 63, 108(n) – 112, 113-117;
(c)   as against the ninth defendant: 41-42, 67-68, 91-95, 102-104, 108(f)-112, 113-117, Schedule 1, Defect nos. 12, 13, 14, 25 and 26;
(d)   as against the twelfth defendant: 52-54, 65-66, 99-101, 108(l)-111, 113-117;
(e)   generally: 118-123, 124-130 and 131-134.

2.   The plaintiff be given leave to file a notice of motion returnable on 28 June 2019 seeking to file a further amended list statement, such motion and any supporting affidavit to be served no later than 14 June 2019.
3.   The plaintiff pay the first to fourth and twelfth defendants’ costs of their notice of motion filed on 9 April 2019 and the ninth defendant’s costs of its amended notice of motion filed on 15 May 2019.
Catchwords: CIVIL PROCEDURE – Pleadings – Striking Out – whether form and content of pleadings defective – embarrassing pleadings – insufficient or inadequate particulars – whether reasonable cause of action disclosed
Legislation Cited: Australian Consumer Law
Environmental Planning & Assessment Regulation 2000 (NSW)
Home Building Act 1989 (NSW)
Practice Note SC Eq 3 – Commercial List and Technology and Construction List
Cases Cited: Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
McKernan v Fraser (1931) 46 CLR 343
Re FG (Films) Ltd [1953] 1 WLR 483
Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116; Re FG (Films) Ltd [1953] 1 WLR 483
Spreag v Paeson Pty Ltd (1990) 94 ALR 679
The Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Ucak v Avante Developments [2007] NSWSC 867
Williams v Hursey (1959) 103 CLR 30
Texts Cited: Building Code of Australia
Category: Procedural and other rulings
Parties: The Owners-Strata Plan 91349 (Plaintiff)
Hallmark Construction Pty Ltd (ACN 066 609 729) (First Defendant)
Raymond Michael Raad (Second Defendant)
Anthony Bruce Crane (Third Defendant)
Raad Holdings Pty Ltd (ACN 079 065 124) (Fourth Defendant)
PNT Group Pty Ltd (ACN 165 795 602) ATF PNT Family Trust (ABN 50 650 103 404) t/as New Style Aluminium (Fifth Defendant)
George Khalil & Associates Pty Ltd (ACN 098 851 211) ATF George Khalil Family Trust (ABN 44 936 164 688) t/as ACSES Engineers (Sixth Defendant)
Duro Building Construction Pty Ltd (ACN 092 138 835) (Seventh Defendant)
FB Masonry Pty Ltd (ACN 113 140 195) (Eighth Defendant)
Mance Arraj Engineering Pty Ltd (ACN 153 123 865) ATF Mance Arraj Engineering Unit Trust (ABN 58 244 208 422) t/as HKMA Engineers (Ninth Defendant)
Certified…

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: [2019] NSWSC 591
Decision Date: 22 May 2019

CaseChat Overview and Summary

The case of The Owners-Strata Plan 91349 v Hallmark Construction Pty Ltd involved a dispute between the Owners-Strata Plan 91349 and Hallmark Construction Pty Ltd. The plaintiffs, Owners-Strata Plan 91349, sought damages for alleged defects in construction and maintenance of a strata title property. Hallmark Construction Pty Ltd, the defendants, denied liability and sought to have the plaintiffs' pleadings struck out on the basis that they were defective and did not disclose a reasonable cause of action. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiffs' pleadings were defective in form or content, and whether they disclosed a reasonable cause of action. The defendants argued that the plaintiffs' pleadings were insufficient as they did not provide adequate particulars regarding the alleged defects and the basis for the claimed damages. Furthermore, the defendants contended that the pleadings were embarrassing as they did not follow the required procedural steps and did not provide sufficient information to enable a fair defence.

The court held that the plaintiffs' pleadings were indeed defective in that they did not provide sufficient particulars regarding the alleged defects and the basis for the damages claimed. The court noted that the plaintiffs had failed to provide specific details about the nature and extent of the defects, the cause of those defects, and how the defendants' actions had contributed to the damages claimed. The court found that the pleadings did not disclose a reasonable cause of action as they were insufficient to enable Hallmark Construction Pty Ltd to properly respond to the claims. Consequently, the court granted the defendants' application to strike out the plaintiffs' pleadings.

As a result of the court's decision, the plaintiffs' claim was dismissed. The court ordered that the plaintiffs pay the defendants' costs of the application to strike out. The plaintiffs were given an opportunity to amend their pleadings, but the court emphasised the need for the plaintiffs to provide detailed particulars in any amended pleadings to avoid a similar outcome.

Orders