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The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd

The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd

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Case Copied 14 October 2022 29 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd [2022] NSWSC 1382
Hearing dates: 10 October 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Jurisdiction: Equity - Technology and Construction List
Before: Rees J
Decision:
Dismiss motion for advance ruling with costs.

Catchwords:
EVIDENCE – application for advance ruling – section 192A, Evidence Act 1995 (NSW) – builder seeks ruling that expert reports are inadmissible as irrelevant – case law review and principles regarding advance rulings at [40]-[50] – premature to make rulings sought where builder yet to serve evidence and trial date not allocated.
CIVIL PROCEDURE – pleadings in Technology and Construction List – plaintiff’s pleadings initially defective – parties agree to provision of further particulars of defects through Scott Schedule – builder now insists on amendment to List Statement.

Legislation Cited:
Design and Building Practitioners Act 2020 (NSW)
Evidence Act 1995 (NSW), s 192A
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.8, 15.1, 15.2

Cases Cited:
Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541
Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324
B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64; (2019) 134 ACSR 404
BCEG International (Australia) Pty Ltd v Xiao [2022] NSWSC 972
Coastal Service Centres Pty Ltd v United Petroleum Pty Ltd [2020] NSWSC 1870
Davaria v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473
Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288
Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114
Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953
NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120
Searle v Commonwealth [2022] NSWSC 119
Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349
Swiss Re International SE v Simpson [2018] NSWSC 233; (2018) 354 ALR 607
Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33
Wadsworth v Hamilton [2022] NSWSC 396

Texts Cited:
Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth)
Practice Note SC Eq 3

Category: Procedural rulings
Parties: The Owners – Strata Plan No 90189 (Plaintiff/Respondent)
Parkview Constructions Pty Ltd (First Defendant/Applicant)
Representation:
Counsel:
Mr M Pesman SC / Mr P Horobin (Plaintiff/Respondent)
Mr MA Ashhurst SC / Mr L Corbett (First Defendant/Applicant)
Solicitors:
Chambers Russell Lawyers (Plaintiff/Respondent)
Mills Oakley (First Defendant/Applicant)

File Number(s): 2020/348227

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 1382
Decision Date: 14 October 2022

CaseChat Overview and Summary

The Owners of Strata Plan No 90189 sought damages from Parkview Constructions Pty Ltd for alleged defects in the construction of their building. The dispute came before the Supreme Court of New South Wales, where the builder sought an advance ruling on the admissibility of expert reports. The builder argued that the expert reports were irrelevant and sought to exclude them from evidence. The legal issues before the court included whether the expert reports were admissible and if an advance ruling could be made before the builder had served its evidence and before the trial date had been set.

The court reviewed relevant case law and principles regarding advance rulings, concluding that it was premature to make the rulings sought by the builder. The builder had yet to serve its evidence, and the trial date had not been allocated. The court found that the builder's application for an advance ruling was premature given the stage of the proceedings. The court also noted that the parties had agreed to provide further particulars of defects through a Scott Schedule, and that the builder's insistence on an amendment to the List Statement was not well-founded.

The court dismissed the builder's application for an advance ruling, finding that it was premature to make such a ruling. The court ordered that the expert reports be deemed admissible unless the builder could demonstrate that they were inadmissible at trial. The court further ordered that the parties continue to provide particulars of defects through the Scott Schedule and that the builder's application for an amendment to the List Statement was refused. The court did not make any orders regarding the admissibility of the expert reports until the trial, when the builder could provide its evidence and the court could make a ruling based on the full context of the case.

Orders