The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511

Supreme Court New South Wales

Medium Neutral Citation: The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511 Hearing dates: 11-15 November 2024; further submissions 18, 19 & 20 November 2024 Decision date: 03 December 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Effective Height of the Building is 25 metres; first and second defendants liable in relation to remaining fire safety defects; claim against third defendant fails Catchwords: BUILDING AND CONSTRUCTION – contract – defects – where first defendant builder and second defendant developer entered building contract – where plaintiff owners corporation alleges general and fire safety defects – where principal claim arises from contention that the "effective height" of building exceeds 25 metres – whether inadequate fire safety measures for building – construction of the Building Code of Australia – meaning of "effective height" – meaning of "storey" – whether garbage collection area, or, in the alternative, car park entry, is the "lowest storey" of the building BUILDING AND CONSTRUCTION – contract – where plaintiff owners corporation alleges a building contract between the second defendant developer and third defendant – where no written contract – where third defendant not licensed to perform residential building works – whether contract may be inferred by circumstances Legislation Cited: Civil Liability Act 2002 (NSW) Design and Building Practitioners Act 2020 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Home Building Act 1989 (NSW) Cases Cited: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 Collings Homes Pty Ltd v Head [2002] NSWSC 1219 Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389 Edwards v Olsen; Murphy v Stevens [2003] SASC 238 Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2021] NSWCA 2 Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 [2023] NSWSC 343 Provincial Homes Pty Ltd v Doyle [2004] NSWSC 624 The Nominal Defendant v Gabriel [2007] NSWCA 52 The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 2) [2024] NSWSC 1188 The Owners - Strata Plan No 69312 v Rockdale City Council; Owners of SP 69312 v Allianz Aust Insurance (2012) 191 LGERA 160; [2012] NSWSC 1244 The Owners - Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659 The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068 Woolfe v Alexander Sussman t/as A Sussman Construction Consulting Services [2001] NSWSC 702 Texts Cited: Macquarie Dictionary, online ed National Construction Code – Building Code of Australia National Construction Code – Guide to the Building Code of Australia, Companion Manual to the Building Code of Australia Oxford English Dictionary, online ed Category: Principal judgment Parties: The Owners - Strata Plan 82089 (Plaintiff) Omaya Holdings Pty Ltd (First Defendant) Arinson Pty Limited (Second Defendant) Omaya Investments Pty Ltd (Third Defendant) BSM Holdings Pty Limited (Sixth Defendant) Representation: Counsel: M Ashhurst SC / C Mobellan (Plaintiff) F Corsaro SC / D Byrne (First to Third & Sixth Defendants)