Great Southern Funds Management Limited v Lysaght Building Solutions Pty Limited trading as Ranbuild & Anor [2009] NSWSC 974

New South Wales Supreme Court

CITATION : Great Southern Funds Management Limited v Lysaght Building Solutions Pty Limited trading as Ranbuild & Anor [2009] NSWSC 974

HEARING DATE(S) : 11 September 2009 JURISDICTION : Equity - Commercial List

JUDGMENT OF : Bergin CJ in Eq

EX TEMPORE JUDGMENT DATE : 11 September 2009

DECISION : Leave granted to file Cross-Claim

CATCHWORDS : [PLEADING] - Whether defendant should be precluded from bringing Cross-Claim because of ambit of plaintiff's claim - Where proportionate liability claims - Where cause of damage not yet identified

LEGISLATION CITED : Trade Practices Act

Alexander v Cambridge Credit (1987) 9 NSWLR 310 CASES CITED : March v E&H Stramare Pty Ltd (1991) 171 CLR 506 Southern Cross Airline Holdings Limited v Arthur Andersen and Co, unreported, FCA, 27 March 1998

PARTIES : D & S Engineering (Second Defendant/Second Cross-Claimant) Ranbuild (First Defendant)

FILE NUMBER(S) : SC 50193/07

COUNSEL : I Faulkner SC (Second Defendant/Second Cross-Claimant) D Robinson SC (First Defendant)

SOLICITORS : Kennedys Lawyers (Second Defendant/Second Cross-Claimant) Mallesons Stephen Jaques (First Defendant)

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN CJ in Eq

11 SEPTEMBER 2009

50193 OF 2007 GREAT SOUTHERN FUNDS MANAGEMENT LIMITED v LYSAGHT BUILDING SOLUTIONS PTY LIMITED TRADING AS RANBUILD & ANOR JUDGMENT 1 This is an application brought by the second defendant for leave to file a Cross-Claim against the first defendant arising out of a claim made by the plaintiff, Great Southern Funds Management Limited, against the first defendant, Lysaght Building Solutions Pty Limited trading has Ranbuild and the second defendant, D & S Engineering Pty Limited. 2 The proceedings have had somewhat of a lengthy history but they have settled down to the point where the plaintiff has filed a Further Amended Summons together with a Further Amended Commercial List Statement and the first defendant has filed an Amended Cross-Claim against the second defendant together with an Amended Commercial List Cross-Claim Statement. 3 The case involves the construction of some chicken sheds that fell down. At the moment it is not clear why they ultimately fell down but the plaintiff sues the first defendant, who was the builder, on a number of fronts, including a claim that it misled and deceived it by reason of some representations that were made about the first defendant's capacity to build the sheds pursuant to the instructions that were given to it. 4 In summary, the plaintiff instructed the first defendant as to what it wanted, the first defendant utilised the services of the second defendant to provide the engineering drawings for the building of the sheds. The case against the second defendant by the plaintiff is a claim under the Trade Practices Act 1974 in respect of the provision of a certification of the design of the poultry sheds dated 27 June 2005. The plaintiff claims that the certification was conduct in trade or commerce and that by providing it to the plaintiff the second defendant made various representations including that "the design satisfied the requirements and principles of structural civil engineering". 5 The "design" is defined as the "26 March design". The 26 March design was a series of drawings for the poultry sheds that the first defendant gave the plaintiff on 26 March 2005. The plaintiff's claim against the second defendant includes allegations that the second defendant represented that the design was in accordance with relevant procedures and codes and in accordance with accepted engineering practice and principles valid for 2005. 6 The certification was in the following terms: