The Owners Strata Plan No 89005 v Stromer (No 3) - [2022] NSWSC 1707

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 89005 v Stromer (No 3) [2022] NSWSC 1707
Hearing dates: 9 December 2022
Decision date: 15 December 2022
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   Strike out paragraphs 20 to 33 of the Technology and Construction List Cross-Claim Statement filed on 23 December 2021;
(2)   Direct that any application to file an amended Technology and Construction List Cross-Claim Statement be served no later than 17 February 2023 and be made returnable on 24 February 2023;
(3)   Order that the cross-claimant pay the second cross-defendant’s costs of the Notice of Motion filed 20 October 2022.

Catchwords:
CIVIL PROCEDURE — Summary disposal under UCPR r 13.4 — Dismissal of cross-claim — Defective pleading concerning statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) — Whether Scott Schedule provided by the cross-claimant adequately identifies the precautions the building supervisor should have taken to manager the risk of harm

Legislation Cited:
Design and Building Practitioners Act 2020 (NSW)
Home Building Act1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068

Category: Procedural rulings
Parties: The Owners – Strata Plan No 89005 (Plaintiff)
Thomas Stromer (First Defendant | First Cross-Claimant)
Simone Stromer (Second Defendant | Second Cross-Claimant)
Nathan Stromer (Third Defendant | Third Cross-Claimant)
Farad Electric Co Pty Ltd (Fourth Defendant | Fourth Cross-Claimant)
Mondan Management Pty Ltd (in liq) t/as Vic Lilli & Partners (First Cross-Defendant)
Peter Smith Constructions Pty Limited (Second Cross-Defendant)
Representation:
Counsel:
B Stanton (Solicitor) (Plaintiff)
P Folino-Gallo (Second Cross-Defendant | Applicant)
J O’Sullivan (Defendants | Cross-Claimants)
Solicitors:
Stanton Legal (Plaintiff)
Bradbury Legal (Second Cross-Defendant | Applicant)
& Legal (Defendants | Cross-Claimants)

File Number(s): 2019/294941
Publication restriction: Nil

JUDGMENT

By a Notice of Motion filed on 20 October 2022, the second cross-defendant, Peter Smith Constructions Pty Limited (the Building Supervisor), seeks summary dismissal of the cross-claim against it under Uniform Civil Procedure Rules 2005 (NSW) r 13.4. That rule gives the Court power to dismiss proceedings or a claim where:

(a)   the proceedings are frivolous or vexatious, or
(b)   no reasonable cause of action is disclosed, or
(c)   the proceedings are an abuse of the process of the court …

In the proceedings, the plaintiff, which is the owners corporation in respect of a residential strata development in Randwick (the Owners Corporation), brings a claim relevantly against the fourth defendant, Farad Electric Co Pty Ltd (the Builder), which was the builder of the strata development, for breaches of the warranties implied by s 18B of the Home Building Act1989 (NSW) in respect of alleged defects in the building work.
By paragraphs 20 to 33 of the Technology and Construction List Cross-Claim Statement filed on 23 December 2021, the Builder brings a claim against the Building Supervisor, in which it alleges that:

it…

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: [2022] NSWSC 1707
Decision Date: 15 December 2022

CaseChat Overview and Summary

In this case, the owners of a strata plan, The Owners Strata Plan No 89005, sued Stromer over alleged breaches of duty in relation to the design and construction of a building. Stromer, in turn, filed a cross-claim against a builder, contending that the builder was responsible for the alleged defects. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Stromer's cross-claim adequately identified the precautions the building supervisor should have taken to manage the risk of harm, as required by section 37 of the Design and Building Practitioners Act 2020 (NSW). The court had to determine whether the Scott Schedule provided by Stromer met this requirement. The court also considered whether the cross-claim was defective under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

The court found that Stromer's cross-claim was defective as it did not sufficiently identify the precautions the building supervisor should have taken. The Scott Schedule did not provide a detailed explanation of the precautions or how they related to the alleged risk of harm. The court held that the cross-claim did not comply with the statutory duty under section 37 of the Act. As a result, the cross-claim was dismissed. The court also noted that the cross-claim did not disclose a reasonable cause of action against the builder.

The court ordered that Stromer pay the costs of the proceeding.

Orders