The Owners-Strata Plan No. 86807 v Crown Group Constructions Pty Ltd (No 2) [2023] NSWSC 520

Supreme Court New South Wales

Medium Neutral Citation: The Owners-Strata Plan No. 86807 v Crown Group Constructions Pty Ltd (No 2) [2023] NSWSC 520 Hearing dates: 5 May 2023 Decision date: 19 May 2023 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Leave be given to the plaintiff to file an amended technology and construction list statement in the form provided to my Associate on 1 May 2023 (the List Statement); (2) Order (1) is subject to the plaintiff by 15 June 2023 filing and serving a report from Credwell Consulting or some other suitably qualified expert which expresses the opinion that the Cladded Walls (as defined in the List Statement) do not comply with the Building Code of Australia 2012 for the reasons set out in paragraphs C42 to C48 of the List Statement; (3) Order that the plaintiff pay the first defendant's costs of the notice of motion filed on 20 March 2023 up until and including 1 May 2023; (4) Order that the plaintiff's costs of the notice of motion filed on 20 March 2023 after 1 May 2023 be the plaintiff's costs in its claim pleaded in paragraphs C30 to C63 of the List Statement; (5) Stand the matter over to 16 June 2023. Catchwords: CIVIL PROCEDURE — Originating process — Amendment — claim under Design and Building Practitioners Act 2020 (NSW) — Where no evidence of non-compliance with the Building Code of Australia — Discretionary matters — Where delay in bringing application — Where no evidence of irremediable prejudice — Leave granted conditional on evidence that building work did not comply with Building Code of Australia CIVIL PROCEDURE — Originating process — Amendment — claim under Design and Building Practitioners Act 2020 (NSW) — Whether claim apportionable — Determination as to the applicability of Pt 4 of the Civil Liability Act 2002 (NSW) unnecessary to grant of leave to amend Legislation Cited: Building Code of Australia Civil Liability Act 2002 (NSW) Design and Building Practitioners Act (2020) (NSW) Environmental Planning and Assessment Act 1979 (NSW) Home Building Act 1989 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Limitation Act 1969 (NSW) Limitation Act 1969 (NSW) Cases Cited: Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368 Christopoulous v Angelos (1996) 41 NSWLR 700 Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181 Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289 The Owners-Strata Plan 86807 v Crown Group Constructions Pty Ltd [2023] NSWSC 44 The Owners‑Strata Plan No. 84674 v Pafburn Pty Ltd [2023] NSWSC 116 Texts Cited: Commonwealth of Australia, Review of the Law of Negligence: Final Report (September 2002) Category: Procedural rulings Parties: The Owners-Strata Plan No. 86807 (Plaintiff) Crown Group Constructions Pty Ltd (First Defendant) Crown W Pty Ltd (Second Defendant) Representation: Counsel: T Lynch SC with DJ Byrne (Plaintiff) DS Weinberger (Defendants)