THE OWNERS, SP 75903 v DIX & ANOR [2011] NSWSC 245

Supreme Court New South Wales

Medium Neutral Citation: THE OWNERS, SP 75903 v DIX & ANOR [2011] NSWSC 245 Hearing dates: Thursday 9 December 2010 Decision date: 05 April 2011 Before: Hall J Decision: The separate question set out in paragraph 1 of the Notice of Motion filed on 16 July 2010 is ordered to be determined separately in accordance with UCPR 28.2. The question is answered in the following terms - The residential and commercial building constructed at 228-232 Condamine Street, Manly Vale, as represented in the drawings referred to in the defendants' letter of 20 January 2004 to Rasco Developers and The Jaara Group, has a rise in storeys of 3, within the meaning of clause 57BC of the Home Building Regulation 1997. Catchwords: STATUTORY CONSTRUCTION - construction of the Home Building Regulation 1997 made under the Home Building Act 1989 - clause 57BC(5) - basis for determining exclusion from exemption for multi-storey building - insurance not required for a building having a "rise in storeys of more than 3" - whether Lower Ground Floor was a level that "includes accommodation only intended for vehicles" and so excluded from the calculation of the number of levels (Regulation was repealed with effect from 1 September 2004) SEPARATE QUESTION - determination of UCPR 28.2 - separate question determination in relation to clause 57BC(5) of the Home Building Regulation 1997 would be an appropriate exercise of power under UCPR 28.2 Legislation Cited: Building Regulations 1994 (Vic) Building (Residential Building Warranty) Amendment Act 2003 (ACT) Building (Multi-Storey Residential Building Exemption) Regulation 2002 (Vic) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amended (Quality of Construction) Act 2003 Home Building Act 1989 Home Building Amendment (Insurance Exemptions) Regulation 2003 Home Building Regulations 1997 Cases Cited: Bailey & Bailey v Director-General Department of Energy Climate Change and Water & Ors [2010] NSWSC 979 Ford v Greer [2008] NSWSC 1181 Commonwealth Bank of Australia v Clune & Anor [2008] NSWSC 1125 Fitzgerald v Parramatta Leagues Club Limited [2010] NSWSC 1126 Street & Ors v Luna Park Sydney Pty Limited & Ors [2007] NSWSC 697 Category: Principal judgment Parties: THE OWNERS, SP 75903 v Lyall Ernest DIX & ANOR Representation: Counsel: P: D Grieve QC/W F Kerr D: D Feller SC/P Bambagiotti Solicitors: P: Suzie Broome & Co D: Norton Rose, Australia File Number(s): 2007/265329