The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 2) [2024] NSWSC 1188

Supreme Court New South Wales

Medium Neutral Citation: The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 2) [2024] NSWSC 1188 Hearing dates: 13 September 2024; further submissions 17 September 2024 Date of orders: 19 September 2024 Decision date: 19 September 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Grant leave to plaintiff to amend list statement; plaintiff to pay defendant's costs thrown away by reason of the amendment; costs of motion be costs in the cause Catchwords: CIVIL PROCEDURE – pleadings – amendment – where plaintiff seeks to exercise liberty to replead allegations against the third defendant – whether prejudice to the third defendant by reason of delay and other matters CIVIL PROCEDURE – admissions – where plaintiff's proposed amended list statement contains new allegations as to an alleged contract between the second and third defendants said to be evidenced by "evidentiary admissions" in the second and third defendants' cross-claim against third parties where the existence of such a contract is asserted – where that cross-claim is unverified but contains certificate by third defendant's solicitor that there are reasonable grounds to make the allegations in the cross-claim – whether these allegations are admissions – whether these allegations are representations Legislation Cited: Civil Procedure Act 2005 (NSW) Design and Building Practitioners Act 2020 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Home Building Act 1989 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) State Environmental Planning Policy (Housing) Amendment (Transport Oriented Development) 2024 Cases Cited: Austin v Austin [1905] VLR 564; (1905) 11 ALR 337; [1905] VicLawRp 48 Boileau v Rutlin (1848) 2 Ex 665; 154 ER 657; [1848] EngR 661 British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 1 Ch 203 British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160 Buckmaster v Meiklejohn (1853) 8 Exch 634; 155 ER 1506; [1853] EngR 415 Jamieson v R (1993) 177 CLR 574; [1993] HCA 48 Kleeners Pty Ltd v Lee Tim (1959) 78 WN (NSW) 746 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 McKinlay v North Australian Co (1869) 3 SALR 135; [1869] SALawRp 21 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 The Owners – Strata Plan No. 82089 v Omaya Holding Pty Ltd [2024] NSWSC 992 Category: Procedural rulings Parties: The Owners - Strata Plan 82089 (Plaintiff) Omaya Holdings Pty Ltd (First Defendant) Arinson Pty Limited (Second Defendant/First Cross-Claimant) Omaya Investments Pty Ltd (Third Defendant/Second Cross-Claimant) Integrated Design Group Pty Ltd (Fourth Defendant/First Cross-Defendant) Bernie Cohen & Associates Pty Ltd trading as Essential Certifiers (Fifth Defendant/Second Cross-Defendant) BSM Holdings Pty Ltd (ACN 631 209 348) (Sixth Defendant) Representation: Counsel: M Ashhurst SC / C Mobellan (Plaintiff) F Corsaro SC (First to Third Defendants/First and Second Cross-Claimants)