Body Corporate Number DPS 91535 v 3A Composites GmbH

The plaintiffs, Body Corporate Number DPS 91535 and Argosy Property No 1 Limited, sought to bring a representative action against the defendants, 3A Composites GmbH, Terminus 2 Limited, and Skellerup Industries Limited, over claims related to the use of combustible cladding in buildings. The plaintiffs sought to represent all persons with a similar interest in the subject matter of the proceeding, namely those with an ownership or leasehold interest in buildings fitted with Alucobond polyethylene core cladding. The court had to decide whether the plaintiffs' claims met the criteria for a representative proceeding under High Court Rules 2016 r 4.24.

The court found that the plaintiffs had not demonstrated that the intended represented group's claims would engage a broader range of building code fire spread requirements than those applicable to the plaintiffs' own cases. The court also found that the proposed representative proceeding appeared to be primarily sought for the benefit of the plaintiffs to enable their engagement of a litigation funder, rather than for the benefit of the intended represented group. The court further found that determining whether Alucobond PE and Alucobond Plus as external cladding were inherently incapable of providing for a low probability of fire spread would not predetermine any claim for their compliance with building code requirements in respect of any particular installation.

The court dismissed the plaintiffs' application for representative orders under r 4.24, and reserved costs for determination on short memoranda to be filed and served by the defendants within ten working days of the date of the judgment.