The Owners Strata Plan 98726 v Elite Realty Development Pty Ltd (No 2)

[2024] NSWSC 398

Supreme Court

New South Wales

Medium Neutral Citation:	The Owners – Strata Plan 98726 v Elite Realty Development Pty Ltd (No 2) [2024] NSWSC 398
Hearing dates:	12 April 2024
Date of orders:	12 April 2024
Decision date:	12 April 2024
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Grant leave to plaintiff to file affidavits; judgment entered for plaintiff against first defendant; proceedings set down for assessment of damages; first defendant to pay plaintiff’s costs of proceedings and motion; direct plaintiff to give notice to first defendant of the making of these orders; grant first defendant liberty to apply to set aside these orders by 5pm 17 April 2024
Catchwords:	CIVIL PROCEDURE – summary disposal – application seeking judgment entered against first defendant – where first defendant has disengaged from proceedings – proceedings set down for the assessment of damages
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	The Owners – Strata Plan 98726 v Elite Realty Development Pty Ltd [2024] NSWSC 397
Category:	Procedural rulings
Parties:	The Owners – Strata Plan 98726 (Plaintiff/Applicant) Elite Realty Development Pty Ltd (First Defendant/Respondent)
Representation:	Counsel: I Chatterjee (Plaintiff/Applicant) Solicitors: Sachs Gerace Lawyers (Plaintiff/Applicant)
File Number(s):	2021/76656

EX TEMPORE JUDGMENT (REVISED)

1. The background of this motion is set out in the judgment I made a short time ago. ^[1]

   1. The Owners – Strata Plan 98726 v Elite Realty Development Pty Ltd [2024] NSWSC 397.

2. The matter now before me is the owners corporation’s Notice of Motion of 5 April 2024 seeking to have judgment entered against the first defendant, the builder, and the proceedings set down for the assessment of damages.

3. I have set out the procedural background in my earlier judgment, as well as the evidence before me in those other proceedings, about the builder's disengagement from these proceedings.

4. Evidence of the same effect is before me in these proceedings.

5. My attention has been drawn to the fact that a number of other experts formerly engaged by the builder have informed the owners corporation's solicitors that they are no longer retained by reason of their fees not being paid.

6. For the same reasons that I was satisfied that the First Cross‑Claim made by the builder against United Consulting Engineers Pty Ltd should be dismissed, I am satisfied that I ought to enter judgment in favour of the owners corporation against the builder for damages to be assessed.

7. I have raised with Mr Chatterjee, who appears for the owners corporation, the question whether it might be more convenient for the owners corporation to have the question of assessment referred out under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 20.14.

8. I make the following orders:

1. Grant leave to the plaintiff to file in Court the Affidavits of Clement Wesley Lo made 5 April 2024 and 11 April 2024.

2. Pursuant to UCPR r 12.7(2), judgment be entered for the plaintiff against the first defendant.

3. Pursuant to UCPR r 30.1, the proceedings be set down for the assessment of damages.

4. Pursuant to UCPR r 42.20, the first defendant to pay the costs of the plaintiff of the proceedings and plaintiff's Notice of Motion filed 5 April 2024.

5. Direct the plaintiff, by 5pm today, 12 April 2024, give notice to the first defendant of the making of these orders by email to: xxx

6. Grant the first defendant liberty to apply to set aside these orders, such liberty to be exercised by 5pm on 17 April 2024.

7. Note that the plaintiff will give consideration as to whether the assessment of damages be determined by the Court or referred out by the Court to a referee.

8. Stand this matter over to the Technology and Construction List on 26 April 2024 for directions.

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Endnote

Decision last updated: 16 April 2024