Supreme Court
New South Wales
Medium Neutral Citation: The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853 Hearing dates: 13 July 2021 Date of orders: 14 July 2021 Decision date: 14 July 2021 Jurisdiction: Equity - Commercial List Before: Williams J Decision: See paragraph [70]
Catchwords: BUILDING AND CONSTRUCTION – civil procedure – application to amend Technology and Construction List Response – proposed amendment to limitation defence based on construction of Home Building Act 1989 (NSW), ss 18C and 18E and schedule 4, clause 109 – defendants had previously withdrawn limitation defence – prejudice to the plaintiff if limitation defence now re-introduced – whether consistent with overriding purpose and dictates of justice to grant leave to amend – leave refused
CIVIL PROCEDURE – application for leave to file a cross-summons and list cross-claim statement against sub-contractors of the defendant builder – where no material facts pleaded or alleged defects particularised in support of the allegations – application dismissed
Legislation Cited: Building Products (Safety) Act 2017 No 69 (NSW), sch 2.6 cl 1
Civil Procedure Act 2005 (NSW), ss 56, 58, 64
Corporations Act 2001 (Cth), s 471B
Home Building Act 1989 (NSW), pt 2C, ss 18A, 18B, 18C, 18D, 18E, sch 4, pt 19 cl 109
Home Building Amendment Act 2011 (NSW), sch 1 cl 13
Home Building Amendment Act 2014 No 24 (NSW), sch 1 cl 28-29
Law Reform (Miscenalleous Provisions) Act 1946 (NSW), s 5
Strata Schemes Management Act 2015 (NSW), s 8, sch 4.12 cl 2
Uniform Civil Procedure Rules 2005 (NSW), r 9.11
Cases Cited: Category: Procedural rulings Parties: The Owners – Strata Plan No 89005 (Plaintiff)
Mr Thomas Stromer (First Defendant)
Mr Simone Stromer (Second Defendant)
Mr Nathan Stromer (Third Defendant)
Farad Electric Co Pty Ltd (Fourth Defendant)Representation: Counsel:
Solicitors:
Mr B Stanton (Solicitor) (Plaintiffs)
Mr J O’Sullivan (Defendants)
Stanton Legal (Plaintiff)
Darian Iancono & Legal (Defendants)
File Number(s): 2019/294941 Publication restriction: N/A
Judgment
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These proceedings were commenced on 20 September 2019.
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The plaintiff is a body corporate constituted under s 8 of the Strata Schemes Management Act 2015 (NSW) and has been the registered proprietor of the common property in strata plan number 89005 since registration of that strata plan on 11 November 2013.
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The first to third defendants were the registered proprietors of that land at all relevant times prior to 11 November 2013. The fourth defendant (a builder) undertook the construction of the apartment building on that land, which is now the subject of strata plan 89005 (the building).
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Where it is necessary to distinguish between them, I will adopt the terminology used by the parties and refer to the first to third defendants as the developers and the fourth defendant as the builder. Otherwise, I will refer to them collectively as the defendants.
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It is common ground between the plaintiff and the defendants that the…
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- AGLC
- The Owners - Strata Plan No 89005 v Stromer [2021] NSWSC 853
- Case
- [2021] NSWSC 853
- Decision Date
CaseChat Overview and Summary
The legal issues centred on whether it was consistent with the overriding purpose and dictates of justice to permit the amendment of the limitation defence after it had been withdrawn. The court considered the potential prejudice to the plaintiffs if the amendment was allowed, as well as the broader principles of fairness and justice. The plaintiffs argued that the amendment was necessary to address the construction of the relevant statutory provisions, while the defendants opposed the amendment on the grounds of prejudice and the absence of new material facts or particularised allegations.
The court ruled that it was not in the interests of justice to grant leave for the amendment. The plaintiffs had not demonstrated that the proposed amendment would serve the overriding purpose of the Uniform Civil Procedure Rules, nor had they shown that the amendment was necessary to achieve a just outcome. The court found that allowing the amendment would cause significant prejudice to the defendants, as it would permit the reintroduction of a defence that had already been withdrawn. Furthermore, the plaintiffs had not provided any new material facts or particularised allegations to support the cross-claim against the sub-contractors, which further undermined the application.
Accordingly, the court dismissed the application for leave to amend the response and to file a cross-summons and list a cross-claim statement against the sub-contractors. The defendants were not required to address the cross-claim, and the plaintiffs' application was dismissed with costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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