Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368

Supreme Court New South Wales

Medium Neutral Citation: Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368 Hearing dates: 30 September 2022; further written submissions 5 October 2022 Date of orders: 12 October 2022 Decision date: 12 October 2022 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Leave granted to amend Cross-Claim Cross-Summons and Cross-Claim List Statement. Submissions invited as to the terms as to costs on which such leave should be granted. Catchwords: BUILDING AND CONSTRUCTION – where no valid development consent or construction certificate in relation to building works – whether defence of illegality available in relation to claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether managing director and project site supervisor of builder capable of being persons for the purposes of s 37 of that Act PRACTICE AND PROCEDURE – whether cross-claimant should have leave to amend Cross-Claim List Statement – where cross-claimant seeks to introduce claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether leave should be refused because of availability of defence of illegality – whether amendment should be disallowed against proposed individual cross-defendants because they are not persons for the purposes of s 37 of that Act – whether amendment should be disallowed on the basis of prejudice to the proposed cross-defendants Legislation Cited: Civil Liability Act 2002 (NSW) Corporations Act 2001 (Cth) Design and Building Practitioners Act 2020 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Bevan v Coolahan (2019) 101 NSWLR 86; [2019] NSWCA 217 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624 Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659 The Owners – Strata Plan No 84674 v Pafburn Pty Ltd (No 2) [2022] NSWSC 1002 The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) (2021) 250 LGERA 114; [2021] NSWSC 1068 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 19 November 2019 P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Procedural rulings Parties: Boulus Constructions Pty Limited (Plaintiff/Cross-Defendant) Warrumbungle Shire Council (Defendant/Cross-Claimant) Representation: Counsel: G Campbell with A Khoury (Plaintiff/Cross-Defendant) D Feller SC with W Marshall (Defendant/Cross-Claimant)