Boughton v Masterton Homes Pty Ltd [2022] NSWSC 1556

Supreme Court New South Wales

Medium Neutral Citation: Boughton v Masterton Homes Pty Ltd [2022] NSWSC 1556 Hearing dates: 4 November 2022 Date of orders: 4 November 2022 Decision date: 04 November 2022 Jurisdiction: Equity - Technology and Construction List Before: Rees J Decision: Refuse leave to issue cross-claim. Catchwords: CIVIL PROCEDURE – cross-claims – application by builder to file cross-claim against engineer – principles at [15]-[16] – engineering problem identified from outset – defendant identified engineer as concurrent wrongdoer two years' earlier – inadequate explanation for delay – granting leave would result in substantial delay – leave refused. Legislation Cited: Home Building Act 1989 (NSW) Cases Cited: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098 Category: Procedural rulings Parties: Bruce Boughton (First Plaintiff//Respondent) Marianela Ferreiro (Second Plaintiff/Respondent) Masterton Homes Pty Ltd (Defendant/Applicant) Representation: Counsel: Mr S Sykes (Plaintiffs/Respondents) Mr A Hourigan (Defendant/Applicant)

Solicitors: William Cotsis & Associates (Plaintiffs/Respondents) Clyde & Co Lawyers (Defendant/Respondent) File Number(s): 2020/218709

EX TEMPORE Judgment 1. HER HONOUR: This is an application by the defendant, Masterton Homes Pty Ltd, for leave to file and serve a Technology and Construction List Cross-Claim Statement against structural engineer, Rafeletos Zanuttini Pty Ltd. 2. The application for leave is opposed by the plaintiffs, Bruce Boughton and Marianella Ferreiro, who commissioned Masterton Homes to build their home. This application comes very late in the piece.