Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199 Hearing dates: 24 and 25 March 2020 Date of orders: 31 August 2020 Decision date: 31 August 2020 Before: Gleeson JA at [1]; McCallum JA at [2]; Emmett AJA at [3] Decision: Order that: 1. Appeal as against the first and second respondents allowed in part, insofar as the primary judge dismissed the plaintiffs' claim against the first and third defendants. 2. Appeal as against the third respondent dismissed. 3. Appellants to pay the third respondent's costs of the appeal. 4. As to the remaining questions of (a) the first and second respondents' defence based on the proportionate liability provisions of the Civil Liability Act 2002 (NSW) and (b) costs of the proceedings below and in this Court, direct that: (i) the first and second respondents file and serve short written submissions on or before 14 September 2020; (ii) the appellants file and serve short written submissions in response on or before 28 September 2020; (iii) the first and second respondents file and serve any short written submissions in reply on or before 12 October 2020. 5. Subject to consideration of any application for a further oral hearing, which should be made in the written submissions referred to in order 4, the remaining questions be dealt with on the papers. Catchwords: BUILDING AND CONSTRUCTION — Negligence — Miscellaneous forms of negligent conduct — Right of support — Application of Conveyancing Act 1919 (NSW) s 177 and common law — Whether loss of support caused damage to adjoining property. TORTS — Negligence — Essentials of action for negligence — Whether there was a failure to take reasonable care — Whether any failure caused damage — Assessment of expert evidence. TORTS — Negligence — Proof of negligence — Res ipsa loquitur. Legislation Cited: Civil Liability Act 2002 (NSW) ss 5D and 5E Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Conveyancing Act 1919 (NSW) s 177 Corporations Act 2001 (Cth) Cases Cited: Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Texts Cited: Nil Category: Principal judgment Parties: The Owners – Strata Plan No. 30791 (First Appellant) Albert Bonansea and Ivana Bonansea (Second Appellant) Angus John Nicholas Brooks (Third Appellant) Julius Wolfgang (Fourth Appellant) Roslyn Bainton (Fifth Appellant) Michelle Anne Carruthers (Sixth Appellant) Alison Jean Pate (Seventh Appellant) Vanessa Claire Winley (Eighth Appellant) Southern Cross Constructions (ACT) Pty Ltd (ACN 111 121 450) (In Liquidation) (First Respondent) Allianz Australia Insurance Limited (ACN 000 122 850) (Second Respondent) Hughes Trueman Pty Ltd (ACN 003 330 783) (Third Respondent) Representation: Counsel: B Walker SC with A Oakes (Appellants) A Moses SC with S Blackman (First and Second Respondents) D Hand (Third Respondent)