The Owners Strata Plan v Brookfield Multiplex Limited - [2010] NSWSC 360

CITATION: The Owners Strata Plan v Brookfield Multiplex Limited [2010] NSWSC 360

HEARING DATE(S): 23 April 2010

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 23 April 2010

DECISION: I propose to grant the defendant leave to file an amended Technology and Construction list response.
1. Subject to the following order, order the defendant to pay the plaintiffs’ costs of and incidental to and thrown away by reason of the amendment of its Technology and Construction list response.
2. Order that the costs of today be costs in the proceedings.
3. I direct the defendant to file and serve its amended list response by 5pm on 28 April 2010. I stand the proceedings over to the directions list on 30 April 2010.

CATCHWORDS: PROCEDURE – application by defendant for leave to amend list response to allege sub-contractors are concurrent wrongdoers – proportionate liability – where pleading did not identify relevant acts or omissions and causal connection between those acts or omissions and the losses in respect of which the plaintiffs sue – whether pleading sufficient to demonstrate what is necessary to show duty of care between sub-contractor and subsequent owner – leave granted – Civil Liability Act 2002 (NSW) Pt 4.

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Home Building Act 1989 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Gunston v Lawley [2008] VSC 97
HSD Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279
Shrimp v Landmark Operations Ltd (2007) 163 FCR 510
St George Bank Limited v Quinerts Pty Ltd [2009] VSCA 245
Ucak v Avante Developments [2007] NSWSC 367
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

PARTIES: The Owners - Strata Plan No. 63312 (First Plaintiff)
The Owners - Strata Plan No. 66849 (Second Plaintiff)
The Owners - Strata Plan No. 66850 (Third Plaintiff)
Brookfield Multiplex Limited (Defendant)

FILE NUMBER(S): SC 2007/266728

COUNSEL: M G Rudge SC / T Davie (Plaintiffs)
L V Gyles SC (Defendant)

SOLICITORS: David Le Page (Plaintiffs)
Gilbert + Tobin (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

23 April 2010 (ex tempore – revised 23 April 2010)

2007/266728 THE OWNERS CORPORATION SP 63342 & ORS v BROOKFIELD MULTIPLEX LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiffs are the Owners Corporations of three strata title developments. They sue the defendant, who they say was the builder, for alleged defects. Their causes of action rely both on breach of statutory warranties under the Home Building Act 1989 (NSW), and breach of duties of care said to have been owed.

2 The defendant denies liability. It says, however, that if it is liable, then a number of sub-contractors, who carried out various aspects of the work, are concurrent wrongdoers for the purposes of Part 4 of the Civil Liability Act 2002 (NSW). The defendant seeks leave to amend its List Response to allege that some nine identified sub-contractors…

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: [2010] NSWSC 360
Decision Date: 23 April 2010

CaseChat Overview and Summary

The Owners Strata Plan commenced proceedings against Brookfield Multiplex Limited, alleging defects in the construction of a residential building. The case was heard in the Supreme Court of New South Wales. The defendant applied for leave to amend its defence to include the contention that the sub-contractors were concurrent wrongdoers and to assert the principle of proportionate liability. The primary legal issue was whether the defendant’s proposed amendment was sufficient to demonstrate the necessary duty of care between the sub-contractor and the subsequent owner, and to identify the relevant acts or omissions and their causal connection to the losses claimed.

The court considered whether the proposed amendment would provide sufficient detail to enable the sub-contractors to respond to the claims effectively and to demonstrate the causal link between their actions and the plaintiffs' losses. The court also considered the principles of proportionate liability under the Civil Liability Act 2002 (NSW). The court found that the proposed amendment sufficiently identified the relevant acts or omissions and their causal connection to the losses, and that it was in the interests of justice to grant leave for the amendment. The court noted that the sub-contractors’ conduct and the extent of their liability would need to be further investigated.

The court granted the defendant leave to amend its defence, allowing the sub-contractors to be identified as concurrent wrongdoers and for the principle of proportionate liability to be asserted. The court emphasised that the sub-contractors would need to demonstrate their duty of care towards the plaintiffs and the causal connection between their actions and the losses claimed. The court reserved the issue of whether the sub-contractors were indeed concurrent wrongdoers and the extent of their liability for further argument.

Orders