New South Wales Supreme Court CITATION : The Owners Strata Plan No. 58068 v Fair Trading Administration Corporation [2008] NSWSC 1023 HEARING DATE(S) : 26/9/08 JURISDICTION : Equity Division Technology and Construction List JUDGMENT OF : Einstein J EX TEMPORE JUDGMENT DATE : 26 September 2008 DECISION : Separate question ordered. CATCHWORDS : Separate question orders LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) CATEGORY : Procedural and other rulings CASES CITED : Idoport Pty Ltd v National Australia Bank Ltd (2000) NSWSC 1215 PARTIES : The Owners Strata Plan 58068 (Plaintiff) Fair Trading Administration Corporation (Defendant) FILE NUMBER(S) : SC 55028/07 COUNSEL : Mr J J Young (Plaintiff) Miss E Olsson SC (Defendant) SOLICITORS : Andreones (Plaintiff) Fair Trading Administration Corporation (Defendant) THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION EINSTEIN J Friday 26 September 2008 ex tempore Revised 29 September 2008 55028/07 The Owners Strata Plan No. 58068 v Fair Trading Administration Corporation JUDGMENT 1 In proceedings no. 55028 of 2007, the defendant by notice of motion filed on 14 August 2008 seeks two groups of orders. 2 The first seeks leave to file an amended technology and construction list response, substantially in accordance with the document annexed and marked 'A' to the notice of motion. 3 That leave is unopposed, save for the plaintiff contending that it is entitled to an order that the defendant pay the costs of the plaintiff occasioned by reason of the amendment, which is an entirely appropriate order, and which order I make. 4 The second group of matters raised by the defendant in the notice of motion seeks pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005, that a number of questions be determined separately and before any other question in the proceedings. 5 Originally the notice of motion sought to have six such questions determined separately, but during the course of argument the defendants limited the claim to separate question orders to the separate questions identified as (i), (ii), (iii) and (iv) in paragraph 2 of the notice of motion. 6 Those questions are as follows: "(i) In terms of the coverage potentially available to the plaintiff under the Comprehensive Insurance Scheme ("the Scheme") what effect, if any, does the fact that the builder was unlicensed from commencement of the building work up until 17 April 1997 have? (ii) When did the plaintiff become aware of matters which could give rise to a claim under the Scheme? (iii) When did the work substantially commence for the purposes of calculating the limitation periods contained in clause 7 of the Scheme? (iv) Should the time limits be extended to permit the whole of the plaintiff's claim?" The background 7 The plaintiff is the registered proprietor of the common property of a multi storey strata-titled residential tower located at 184 Forbes, Street Darlinghurst in Sydney, known as The Horizon Apartments. 8 The plaintiff alleges that the building contains many defects, causing losses to the plaintiff in an amount, although not yet quantified, expected to be in the region of more than $1 million. 9 The plaintiff alleges that the builder who constructed the building, Grocon Pty Limited, failed in its duty as a builder and caused the defects. 10 The Fair Trade Administration Corporation [FTAC], being the defendant, is the body constituted to administer the comprehensive insurance scheme, the statutory insurance scheme that insures residential building works carried out prior to 1997 (the Scheme). 11 The plaintiff made a claim on the Scheme which was refused. The present proceedings have been brought by the plaintiff as a challenge to that refusal. Principles 12 A summary of the principles to be applied when considering whether there should be separate questions determined as a preliminary matter, is contained in Idoport Pty Ltd v National Australia Bank Ltd (2000) NSWSC 1215 at 6 - 8. 13 The plaintiff opposes the making of separate question orders. The defendant pursues the making of those orders in relation to the four paragraphs to which I have already referred. 14 In my view, the identified four separate questions are sufficiently severable from the remaining questions in the proceedings, to be seen to fall within the ambit of efficiency associated with the making of separate question orders. 15 Whilst a number of matters are raised in those separate questions, without being exhaustive, they certainly include questions as to the proper interpretation of the comprehensive insurance scheme and associated legislation, and to a considerable extent, involve discrete and identifiable questions of law. 16 To my mind there must be a respectable possibility that determination of these separate questions may well have the effect of resolving the entirety of the proceedings. 17 Whether, if and when the identified four separate questions are answered, the parties are in a position to reach an accommodation in relation to settling the whole of the proceedings or form the view that a mediation may have that result, are legitimately matters to be taken into account in the principled exercise of the Court's discretion. 18 During the hearing of the motion the plaintiff made much of the fact that the affidavit of Sheldon Garcia sworn 28 August 2008 and before the Court, showed that the proceedings had been in existence since April 2007, that a suit of separate questions had already been ordered, heard and determined and that preparation for the trial was well advanced. 19 Mr Young emphasised that the plaintiffs, on the evidence before the Court, had already incurred in excess of $100,000 in legal costs and disbursements in the trial preparation up to this point in time. 20 I have had an opportunity of looking at the decision on the earlier set of separate questions determined by Associate Justice Macready. To my mind those separate questions were entirely appropriate and do not impinge upon the questions now sought to be propounded as separate questions. 21 Insofar as the plaintiff's incurring of in excess of $100,000 in legal costs and disbursements in the trial preparation to date is concerned, I do not see that the making of the separate question orders now sought, ought in any which way prejudice such rights, if any, as the plaintiffs may have in terms of legal costs. 22 In the fullness of time, after the proceedings are determined, the Court takes submissions as to costs and both parties have a proper opportunity to put forward affidavits and submissions as to why one or the other should be ordered to pay all or some of the legal costs. 23 For those reasons, the principled exercise of the Court's discretion is to make orders in terms of paragraphs 1 to 4 in the notice of motion. 24 The orders of the Court are as follows: 1. The Court grants leave to the defendant to file an Amended Technology and Construction List Response, substantially in accordance with the document at annexure 'A' of the notice of motion filed by the defendant on 14 August 2008. 2. Order that the defendant pay the plaintiff's costs of and occasioned by that amendment. 3. The Court makes orders in terms of paragraph 2(i), (ii), (iii) and (iv) of the notice of motion. 25 The Court reserves costs of the notice of motion seeking the separate question regime. ****************************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.