Wembley Lakes Estates Pty Ltd v The Owners of Riviera Apartments (Strata Plan 35851)

[2004] WASCA 56

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   WEMBLEY LAKES ESTATES PTY LTD -v- THE OWNERS OF RIVIERA APARTMENTS (STRATA PLAN 35851) & ANOR [2004] WASCA 56

CORAM:   MCKECHNIE J

EM HEENAN J

HEARD:   12 MARCH 2004

DELIVERED          :   12 MARCH 2004

FILE NO/S:   FUL 122 of 2003

BETWEEN:   WEMBLEY LAKES ESTATES PTY LTD (ACN 062 410 922)

Applicant (First Defendant)

AND

THE OWNERS OF RIVIERA APARTMENTS (STRATA PLAN 35851)
First Respondent (Plaintiff)

PETER JOHN WILSON
Second Respondent (Second Defendant)

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram   :MASTER SANDERSON

File Number            :  CIV 1236 of 2002

Catchwords:

Practice and procedure - Application for summary judgment - Whether clear case - Claim for negligence against developers of domestic units for defects - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Applicant (First Defendant)                   :        Mr D K Barker

First Respondent (Plaintiff)                   :        Dr P R MacMillan

Second Respondent (Second Defendant)  :        No appearance

Solicitors:

Applicant (First Defendant)                   :        Chalmers & Partners

First Respondent (Plaintiff)                   :        Kitto & Kitto

Second Respondent (Second Defendant)  :        No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bryan v Maloney (1994) 182 CLR 609

Donoghue v Stevenson (1932) All ER 1

Goulding v Kirby [2002] NSWCA 393

Mt Albert Borough Council v Johnson [1979] 2 NZLR 234

Perre v Apand Pty Ltd (1999) 198 CLR 180

Wilson & Ors v Metaxas (1989) WAR 285

1. MCKECHNIE J:  This is an application for leave to appeal from a decision of Master Sanderson, which refused the applicant's application for summary judgment on the pleadings.  It is not necessary to go into the pleadings in any great detail.  The plaintiff is a strata company that acts really on behalf of the proprietors of units known as Riviera Apartments in South Perth.  The plaintiff has had several attempts at putting together its statement of claim but finally succeeded in doing so in a way which found favour with the Master.  The plaintiff takes action against the first defendant and the second defendant, this application being made only by the first defendant. 

2. The first defendant, it is pleaded, was the developer of the premises and the second defendant, it is pleaded, is a professional builder who constructed the apartments pursuant to a cost plus contract.  The plaintiff pleads as against the first defendant an action which I will summarise as an action in tort alleging that there was a breach of duty of care to those persons who bought apartments, both directly from the first defendant and subsequent purchasers.

3. The Master noted correctly, I believe, that the plaintiff faces a number of difficulties and that the duty of care here is entirely problematical.  Certainly the authorities to which Mr Barker has made reference today all bear upon the question as to whether a duty of care is owed in these circumstances.  On the other hand, Dr MacMillan, in his written submissions has pointed to other authorities which might suggest that the plaintiff's claim is not wholly without merit.

4. What the Master said was:

   "I think this is one of those cases where the law is in a state of flux.  Precisely how far the principles of Bryan v Maloney are to be applied in a case such as this, I think is a question which travels beyond what is proper to resolve on a summary judgment application."

5. The Master then cited, not by reference to individual authorities but the principles, that great care must be exercised that judgment is entered only in the clearest cases.  He said he was not satisfied that this is such a clear case. 

6. In my opinion that judgment was open to him.  The issues raised are complex and may well be better served after proper pleadings and analysis, either by way of preliminary point or by way of trial.  The Master, in fact, mentions those matters by way of obiter dicta.  They are

not appropriate to be finally resolved on the pleadings and, in particular, on the statement of claim alone.  The sort of analysis which is invited justified the Master's view that the authorities and the law are in a state of flux.

1. That being the case, the Master was of the view, as am I, that this is not such a clear case that summary judgment ought to be entered on the pleadings.  I consider his decision was not wrong or attended with sufficient doubt.  I would refuse leave. 

2. EM HEENAN J:  I too would refuse leave to appeal in this matter for the reasons given by McKechnie J.