The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853 Hearing dates: 13 July 2021 Date of orders: 14 July 2021 Decision date: 14 July 2021 Jurisdiction: Equity - Commercial List Before: Williams J Decision: See paragraph [70] Catchwords: BUILDING AND CONSTRUCTION – civil procedure – application to amend Technology and Construction List Response – proposed amendment to limitation defence based on construction of Home Building Act 1989 (NSW), ss 18C and 18E and schedule 4, clause 109 – defendants had previously withdrawn limitation defence – prejudice to the plaintiff if limitation defence now re-introduced – whether consistent with overriding purpose and dictates of justice to grant leave to amend – leave refused CIVIL PROCEDURE – application for leave to file a cross-summons and list cross-claim statement against sub-contractors of the defendant builder – where no material facts pleaded or alleged defects particularised in support of the allegations – application dismissed Legislation Cited: Building Products (Safety) Act 2017 No 69 (NSW), sch 2.6 cl 1 Civil Procedure Act 2005 (NSW), ss 56, 58, 64 Corporations Act 2001 (Cth), s 471B Home Building Act 1989 (NSW), pt 2C, ss 18A, 18B, 18C, 18D, 18E, sch 4, pt 19 cl 109 Home Building Amendment Act 2011 (NSW), sch 1 cl 13 Home Building Amendment Act 2014 No 24 (NSW), sch 1 cl 28-29 Law Reform (Miscenalleous Provisions) Act 1946 (NSW), s 5 Strata Schemes Management Act 2015 (NSW), s 8, sch 4.12 cl 2 Uniform Civil Procedure Rules 2005 (NSW), r 9.11 Cases Cited: Kelly v Mina [2014] NSWCA 9 Lucantonio v Benscrape Pty Ltd [2020] NSWSC 579 Price v Spoor [2021] HCA 20 Category: Procedural rulings Parties: The Owners – Strata Plan No 89005 (Plaintiff) Mr Thomas Stromer (First Defendant) Mr Simone Stromer (Second Defendant) Mr Nathan Stromer (Third Defendant) Farad Electric Co Pty Ltd (Fourth Defendant) Representation: Counsel: Mr B Stanton (Solicitor) (Plaintiffs) Mr J O'Sullivan (Defendants)