The Owners Corporation Strata Scheme 56120 v Allianz Australia Insurance Limited & Anor [2009] NSWSC 1480

New South Wales Supreme Court

CITATION : The Owners Corporation Strata Scheme 56120 v Allianz Australia Insurance Limited & Anor [2009] NSWSC 1480 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 27/11/09, 11/12/09

JUDGMENT DATE : 15 December 2009

JURISDICTION : Equity Division Technology and Construction List

JUDGMENT OF : Einstein J

DECISION : Second defendant entitled to bring proportionate liability defence.

CATCHWORDS : Practice and procedure - Pleading of proportionate liability defence under section 35 of the Civil Liability Act 2002 (NSW) - Until the Civil Liability Regulations 2009 were made on 1 September 2009 this action was not an "apportionable claim" under s 35 of the Civil Liability Act as the cause of action accrued before 26 July 2004: Reg 3 Civil Liability Regulations 2003 - Nor was it a claim to which the now repealed s 109ZJ of the Environmental Planning and Assessment Act 1989 (NSW) (EP&A Act) applied as the action was commenced after 26 July 2004: Item 8 of Sch 1 to the Civil Liability Act - It is however a "building action" as defined by s 109ZI of the EP&A Act - Thus, until 1 September 2009 there was a lacuna in the legislative scheme for proportionate liability in relation to building contracts, which has now been filled - The action, by Reg 5 of the 2009 Regulations, is now an action to which Part IV of the Civil Liability Act applies

Civil Liability Act 2002 (NSW) Civil Liability Regulations 2009 LEGISLATION CITED : Civil Liability Regulations 2003 Environmental Planning and Assessment Act 1989 (NSW) Strata Schemes Management Act (1996)