The Owners Strata Plan 99170 v MN Builders Pty Ltd - [2025] NSWSC 1190

Supreme Court

New South Wales

Medium Neutral Citation: The Owners Strata Plan 99170 v MN Builders Pty Ltd [2025] NSWSC 1190
Hearing dates: 10 October 2025
Date of orders: 10 October 2025
Decision date: 10 October 2025
Jurisdiction: Equity - Technology and Construction List
Before: Rees J
Decision:
Trial vacated, relisted 26 June 2026.

Catchwords:
VACATE TRIAL – principles at [19]-[21] – matter fixed for trial – plaintiff serves substantial body of further liability and quantum evidence.

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 62(1), 66

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716
Cohen v McWilliam (1995) 38 NSWLR 478
Hamod v New South Wales [2011] NSWCA 375
Kerr v American Express Australia Ltd [2009] FCA 1219
Lennox v Amcor Ltd trading as Amcor Cartonboard(No 2) [2009] FCA 962
Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25
Singh v Deputy Commissioner of Taxation [2011] FCA 889
Thornberry v The Queen (1995) 69 ALJR 777

Category: Procedural rulings
Parties: The Owners – Strata Plan No 99170 (Plaintiff)
MN Builders Pty Ltd (First Defendant)
Coronation (26 Shepherd St) Pty Ltd (Second Defendant)
Coronation (28 Shepherd St) Pty Ltd (Third Defendant)
Representation:
Counsel:
N Simpson SC (Plaintiff)
M Pesman SC (Defendants)
Solicitors:
Project Lawyers (Plaintiff)
Collins Biggers & Paisley (Defendants)

File Number(s): 2021/335374

ex tempore JUDGMENT

HER HONOUR: This is an application to vacate a 10-day trial that is due to commence in seven weeks. The substantive claim is for damages for building defects in relation to an 83-apartment development in Liverpool. The quantum of damages sought is some $27 million.

Facts

These proceedings were commenced more than four years ago, initially, in the NSW Civil and Administrative Tribunal. It was transferred to this Court in December 2021. The plaintiff was initially directed to serve its evidence on liability by 30 September 2022. Various extensions were given. Whilst I do not have all the details at my fingertips, it looks like this task was completed by July 2023.
The plaintiff and defendants' experts then prepared joint reports in the various disciplines relevant to the alleged defects, including mechanical defects, structural defects and waterproofing. So far as I can tell, this task was completed by October 2024.
On 8 November 2024, the plaintiff sought a hearing date, even though quantum evidence had yet to be completed. The plaintiff's senior counsel informed Ball J that, other than quantum, the matter was ready for hearing. A hearing date was sought, as the plaintiff did not want to run the risk of losing the opportunity to have the matter heard in 2025. His Honour acceded to that request and listed the matter for trial for 10 days commencing on 1 December 2025. Directions were also made for the parties to serve their quantum evidence.
The time to…

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: [2025] NSWSC 1190
Decision Date: 10 October 2025

CaseChat Overview and Summary

In this case, the plaintiff, The Owners Strata Plan 99170, brought an action against MN Builders Pty Ltd, the builder, for alleged breaches of contract and statutory obligations under the Home Building Act 1989 (NSW) and the Australian Consumer Law. The dispute centred around the construction of a strata title unit in Sydney, which the plaintiff claimed was defective and did not meet the required standards. The matter was set for a trial at the Supreme Court of New South Wales, but before the trial could commence, the plaintiff served a substantial body of further evidence regarding liability and quantum.

The court was required to determine whether the trial should proceed as fixed or whether the plaintiff's late service of additional evidence warranted vacating the trial. The central legal issues included whether the principles governing the vacating of trials applied and whether the plaintiff had acted with sufficient diligence in serving the additional evidence. The court considered whether the late service of evidence could be justified by the circumstances, and whether the defendant would be prejudiced if the trial were to proceed.

The court found that the principles guiding the vacating of trials were applicable and that the plaintiff had not acted with sufficient diligence. The judge emphasised that the trial had already been fixed for a considerable period and that the plaintiff's delay in serving the additional evidence was inordinate. The court held that the defendant would be prejudiced if the trial proceeded, given the need to rearrange their schedules and the potential impact on their ability to prepare adequately. Consequently, the trial was vacated, and the matter was remanded for further consideration.

The court ordered that the matter be listed for a new trial date and that the plaintiff pay the defendant's costs associated with the vacated trial. The plaintiff was also directed to provide an undertaking to serve any further evidence at least 28 days before the new trial date, to ensure that both parties had sufficient time to prepare and that the trial could proceed without further interruptions.

Orders