The Owners - Strata Plan No 89005 v Stromer - [2021] NSWSC 853

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on construction of Home Building Act 1989 (NSW), ss 18C and 18E and schedule 4, clause 109 – defendants had previously withdrawn limitation defence – prejudice to the plaintiff if limitation defence now re-introduced – whether consistent with overriding purpose and dictates of justice to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:
Kelly v Mina [2014] NSWCA 9
Lucantonio v Benscrape Pty Ltd [2020] NSWSC 579
Price v Spoor [2021] HCA 20

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:
Mr B Stanton (Solicitor) (Plaintiffs)
Mr J O’Sullivan (Defendants)
Solicitors:
Stanton Legal (Plaintiff)
Darian Iancono & Legal (Defendants)

File Number(s): 2019/294941
Publication restriction: N/A

Judgment

These proceedings were commenced on 20 September 2019.
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.
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).
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.
It is common ground between the plaintiff and the defendants that the…

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.

Continue reading The Owners - Strata Plan No 89005 v Stromer

Details

AGLC: The Owners - Strata Plan No 89005 v Stromer [2021] NSWSC 853
Case: [2021] NSWSC 853
Decision Date: 14 July 2021

CaseChat Overview and Summary

The matter before the court involved the owners of a strata plan who sought to amend their response to a defence raised by the defendant builder, Stromer. The amendment aimed to introduce a limitation defence based on specific provisions of the Home Building Act 1989 (NSW). Previously, the defendants had withdrawn this limitation defence, but the plaintiffs now sought to reintroduce it. The court had to determine whether it was appropriate to grant leave for the amendment, considering the potential prejudice to the plaintiffs and the overriding purpose and dictates of justice.

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