The Owners-Strata Plan 88565 v ACN 103 211 141 Pty Ltd [2024] NSWSC 396

Supreme Court New South Wales

Medium Neutral Citation: The Owners-Strata Plan 88565 v ACN 103 211 141 Pty Ltd [2024] NSWSC 396 Hearing dates: 2 April 2024 Decision date: 17 April 2024 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Order pursuant to section 63 of the Civil Procedure Act 2005 (NSW) excusing the second defendant's failure to obtain an order to serve the third cross-summons and cross list statement, with the effect that the third cross-summons and cross list statement are taken, nunc pro tunc, to have been: (a) validly filed on 24 July 2023; and (b) validly served on the first cross-defendant to the third cross claim and the second cross defendant to the third cross claim on 18 January 2024. (2) The second cross defendant's costs of the amended notice of motion dated 28 March 2024 (the Amended Notice of Motion) be the second cross defendant's costs in the third cross claim; (3) Each of the cross claimant and first cross defendant bear its own costs of the Amended Notice of Motion. Catchwords: CIVIL PROCEDURE — Pleadings — Where r 9.1(1) of Uniform Civil Procedure Rules 2005 (NSW) has not been complied with — Application of s 63 of the Civil Procedure Act 2005 (NSW) — Where applicant seeks that cross summons and cross list statement be taken, nunc pro tunc, to have been validly filed and validly served CIVIL PROCEDURE — Pleadings — Striking out — Tendency to cause prejudice — Where cross defendant seeks that cross summons and cross list statement be struck out due to prejudice caused by delay Legislation Cited: Australian Consumer Law Civil Procedure Act 2005 (NSW) Design and Building Practitioners Act 2020 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bobolas v Waverley Council [2016] 92 NSWLR 406; [2016] NSWCA 139 Hastie Group Ltd (in liq) v Moore [2016] NSWSC 1682 Hastie Group Ltd (in liq) v Bourne [2017] NSWSC 709 National Australia Bank v Sayed (No 6) [2016] NSWSC 1253 Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098 The Owners - Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068 The Owners – Strata Plan No 89005 v Stromer (No 3) [2022] NSWSC 1707 Category: Procedural rulings Parties: Frasers Central Park Land No 1 Pty Ltd (Cross-Claimant on Third Cross-Claim | Applicant) Johnson Pilton Walker Pty Limited (First Cross-Defendant to Third Cross-Claim | First Respondent) Advanced Property Solutions (NSW & ACT) Pty Limited (Second Cross-Defendant to Third Cross-Claim | Second Respondent) Representation: Counsel: M Sheldon (Cross-Claimant on Third Cross-Claim | Applicant) A Shearer (First Cross Defendant to Third Cross-Claim | First Respondent)