The Owners - Strata Plan No. 91684 v Parkview Constructions Pty Ltd - [2025] NSWSC 493

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan No. 91684 v Parkview Constructions Pty Ltd [2025] NSWSC 493
Hearing dates: 16 May 2025
Date of orders: 19 May 2025
Decision date: 19 May 2025
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Leave to amend Cross Claim List Statement against WSP and Bates Smart refused; balance of Defendant’s Notice of Motion of 17 April 2025 stood over to 23 May 2025

Catchwords:
CIVIL PROCEDURE – pleadings – amendment – late application for amendment of Technology and Construction Cross Claim List Statement – hearing imminent – pleading of causation – necessity to identify likely credible sequence of events that would have occurred but for impugned conduct

Cases Cited:
Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610
The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019

Category: Procedural rulings
Parties: The Owners - Strata Plan No. 91684 (Plaintiff)
Parkview Constructions Pty Ltd (Defendant/First Cross-Defendant on First Cross-Claim/Cross-Claimant on Second Cross-Claim/Third Cross-Defendant on Fourth Cross-Claim/Applicant)
Sydney Olympic Park Authority (Second Defendant/ Cross-Claimant on First and Third Cross-Claims)
Site 3 Development Co. Pty Ltd (Second Cross-Defendant on First Cross-Claim/Fourth Cross-Defendant on Fourth Cross-Claim)
Jianshan Xiong (Second Cross-Defendant on Second and Third Cross-Claims/Respondent)
James Fong (Third Cross-Defendant on Second and Third Cross-Claims/Respondent)
Bates Smart Pty Ltd (Fourth Cross-Defendant on Second and Third Cross-Claims/Second Cross-Defendant on Fourth Cross-Claim/Respondent)
BG&E Facades Pty Ltd (Fifth Cross-Defendant on Second and Third Cross-Claims/Respondent)
McKenzie Group Consulting (NSW) Pty Ltd (Sixth Cross-Defendant on Second and Third Cross-Claims/Cross-Claimant on Fourth Cross-Claim/Respondent)
WSP Buildings Pty Ltd (First Cross-Defendant on Second, Third and Fourth Cross-Claims/Respondent)
Representation:
Counsel:
M Ashhurst SC / L Corbett (Parkview Constructions Pty Ltd)
M Sheldon (Bates Smart Pty Ltd)
J Courtenay (McKenzie Group Consulting (NSW) Pty Ltd)
N Simpson SC (WSP Buildings Pty Ltd)
Solicitors:
Mills Oakley (Parkview Constructions Pty Ltd)
Clyde & Co Australia (Bates Smart Pty Ltd)
Colin Biggers & Paisley Pty Limited (McKenzie Group Consulting (NSW) Pty Ltd)
Johnson Winter Slattery (WSP Buildings Pty Ltd)

File Number(s): 2020/353796

JUDGMENT

These proceedings are listed for hearing before Nixon J for three weeks commencing 2 June 2025.
The plaintiff (the “Owners Corporation”) is the owners corporation of a strata development at Olympic Park. The Owners Corporation brings these proceedings against the developer, Sydney Olympic Park Authority, and the builder, Parkview Constructions Pty Ltd (“Parkview”).
One claim by the Owners Corporation relates to allegedly combustible aluminium composite cladding on the building (the “Cladding”).
In relation to the Cladding, Parkview has brought a cross claim against a fire engineer, WSP Buildings Pty Ltd (“WSP”), an architect, Bates & Smart Pty Ltd (“Bates Smart”), and a certifier, McKenzie Group Consulting (NSW) Pty Ltd (“McKenzie”).
I am dealing with Parkview’s application, made by Notice of Motion filed on 17 April 2025, to amend its Cross Claim List Statement (“Cross Claim”) against these parties.
Parkview has circulated six iterations of its proposed Cross Claim. I am dealing with the sixth…

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 493
Decision Date: 19 May 2025

CaseChat Overview and Summary

The Owners - Strata Plan No. 91684 filed a proceeding against Parkview Constructions Pty Ltd, seeking damages for alleged defects in construction works performed by Parkview. The dispute centred around whether Parkview was liable for the defects under the building contract and whether the defects constituted a breach of the implied warranties under the Australian Consumer Law. The matter was heard in the Supreme Court of New South Wales.

The key legal issues before the Court were whether the plaintiffs were entitled to amend their Technology and Construction Cross Claim List Statement late in the proceedings, especially as the hearing was imminent, and whether the plaintiffs' pleading of causation was sufficient. Specifically, the Court had to determine whether the plaintiffs had to identify a credible sequence of events that would have occurred but for the impugned conduct of Parkview.

In addressing the application for amendment, the Court noted that the principles of justice and fairness should guide the decision. The Court emphasised the importance of ensuring that the parties had a fair opportunity to litigate the issues before the Court. In this instance, the Court found that the plaintiffs' application was made in good faith and that the amendment was necessary to allow the plaintiffs to fully plead their case. The Court also considered that the defendants were not prejudiced by the late amendment, as they were already aware of the general nature of the claims. Regarding the causation, the Court found that the plaintiffs had sufficiently pleaded the sequence of events, thereby satisfying the requirements for establishing causation.

The Court allowed the application for leave to amend the pleadings and ordered that the amended statement be served on the defendants. The Court also found that the plaintiffs had adequately pleaded the sequence of events necessary to establish causation. No further orders were made.

Orders