Ace Woollahra Pty Ltd v The Owners—Strata Plan 61424 & Anor [2010] NSWCA 101

Reported Decision: 77 NSWLR 613

New South Wales Court of Appeal

CITATION: Ace Woollahra Pty Ltd v The Owners—Strata Plan 61424 & Anor [2010] NSWCA 101 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 April 2010

JUDGMENT DATE: 17 May 2010

JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Sackville AJA at 3

(1) Leave to appeal granted. (2) Appeal allowed. (3) Set aside the answer to Question 1 of the agreed Statement of Preliminary Issues Facts and Premises given by Einstein J on 29 July 2009. In lieu thereof, Question 1 should be answered as follows: "The first respondent ('Proprietor') is not entitled under s 18D of the Home Building Act 1989 to enforce the statutory warranty against the appellant ('Builder')." DECISION: (4) Dismiss the summons filed by the Proprietor on 2 September 2008. (5) Set aside the costs order made by Einstein J on 29 July 2009 ("Costs Order"). (6) In lieu of the Costs Order, order the Proprietor to pay the Builder's costs of the proceedings at first instance. (7) Order the Proprietor to pay the Builder's costs of the appeal (including the summons for leave to appeal). (8) The Proprietor, if otherwise qualified, should have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: BUILDING AND CONSTRUCTION—Home Building Act 1989 Part 2C—joint venture to construct aged person units—one joint venturer contracts with builder to erect units on land—other joint venturer is the registered proprietor of the land—owners corporation acquires title from registered proprietor—whether owners corporation is entitled to the benefit of a statutory warranty enforceable against the builder by operation of s 18D of the Home Building Act 1989