The Owners - Strata Plan No 97315 v Icon Co (NSW) Pty Ltd [2023] NSWSC 363

Supreme Court New South Wales

Medium Neutral Citation: The Owners - Strata Plan No 97315 v Icon Co (NSW) Pty Ltd [2023] NSWSC 363 Hearing dates: 4 April 2023 Date of orders: 13 April 2023 Decision date: 13 April 2023 Jurisdiction: Equity - Technology and Construction List Before: Darke J Decision: Notice of Motion for rejection and variation of referee's report is dismissed with costs. Catchwords: BUILDING AND CONSTRUCTION – defective sunshades on façade of residential tower – referral of issues to referee – referee to determine whether builder liable and, if so, what is the proper rectification method – referee finds builder liable in respect of structurally inadequate sunshades – referee faced with competing rectification methods – referee concludes that C Bracket Solution is proper rectification method – whether referee misconstrued contract in finding that C Bracket Solution would achieve conformity with the contract – whether referee's findings concerning visibility of brackets perverse or based upon a failure to understand evidence – held that referee made no error of principle, and his findings of fact were clearly open to him – not appropriate to exercise discretion to reject or vary the referee's report – motion dismissed Legislation Cited: Home Building Act 1989 (NSW), s 18B(1) Supreme Court Rules 1970 (NSW), Pt 72 r 13 Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.24 Cases Cited: Bannister & Hunter Pty Ltd v Transition Resort Holdings (No 3) [2013] NSWSC 1943 Bellgrove v Eldridge (1954) 90 CLR 613 Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Homebush Abattoir Corporation v Bermria Pty Ltd (1991) 22 NSWLR 605 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Category: Procedural rulings Parties: The Owners – Strata Plan No 97315 (Plaintiff) Icon Co (NSW) Pty Ltd (Defendant) Representation: Counsel: Mr F Corsaro SC (Plaintiff) Mr D T Miller SC with Mr M J Smith (Defendant)