The Owners - Strata Plan No 91086 v Fairview Architectural Pty Ltd (No 3) [2023] FCA 814

Federal Court of Australia The Owners – Strata Plan No 91086 v Fairview Architectural Pty Ltd (No 3) [2023] FCA 814 File number(s): NSD 940 of 2019

Judgment of: WIGNEY J

Date of judgment: 20 July 2023

Catchwords: PRACTICE AND PROCEDURE – representative proceedings pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) – interlocutory application for an order pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) that the insurer of the respondent be joined to the proceeding as the second respondent – interlocutory application for leave pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to bring and continue the proceeding against the insurer of the respondent – application for leave to file and serve amended originating application and amended statement of claim – consideration of whether affixation of allegedly combustible cladding constitutes property damage within the scope of the second respondent's insurance policies – consideration of expert evidence regarding methods of cladding affixation and removal – found that cladding removal will cause damage to applicant's property, including requiring removal of top hat structure and remediation of building prior to affixation of replacement cladding – found that affixation of panels makes property less suitable for intended residential purpose – found that damage caused to building at moment of affixation of cladding – leave to proceed against insurer and to amend pleadings granted

Legislation: Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) ss 29, 33 Corporations Act 2001 (Cth) ss 440D, 444E Federal Court of Australia Act 1976 (Cth) pt IVA Federal Court Rules 2011 (Cth) rr 8.21, 9.05, 16.53, 30.01 Judiciary Act 1903 (Cth) ss 39B(1A)(c), 79 Trade Practices Act 1974 (Cth) ss 53, 55 Building Products (Safety) Act 2017 (NSW) s 9(1) Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 3(1), 4, 5 Law Reform (Miscellaneous Provisions Act) 1946 (NSW) s 6