The Owners Strata Plan 67202 -v- Laing O'Rourke (BMC) Limited [2011] NSWSC 939

Supreme Court New South Wales

Medium Neutral Citation: The Owners Strata Plan 67202 -v- Laing O'Rourke (BMC) Limited [2011] NSWSC 939 Hearing dates: 17 August 2011 Decision date: 17 August 2011 Jurisdiction: Equity Division - Technology and Construction List Before: Hammerschlag J Decision: Summary judgment refused with costs Catchwords: TECHNOLOGY AND CONSTRUCTION - motion for summary dismissal of plaintiff's claim for breach of statutory warranty and negligence - s 18B of the Home Building Act 1989 (NSW) - statutory warranties as to quality of construction work - s 18E(1) of the Home Building Act 1989 (NSW) - proceedings for breach to be commenced within seven years of completion of work - ss 23(1), 24(1), 24(2) and 33 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - Reg 11(1) of the Consumer, Trader and Tenancy Regulation 2009 (NSW) - s 14(1) of the Limitation Act 1969 (NSW) - whether Home Building Division application lodged with Consumer, Trader and Tenancy Tribunal a nullity such that proceedings statute-barred - held Holding Building Division application contains sufficient particulars - held proceedings also not nullified by failure to comply with regulations - held limitation issues should not be determined in advance of trial where insufficient is known of damage sustained - summary dismissal refused Legislation Cited: Home Building Act 1989 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) Limitation Act 1969 (NSW) Cases Cited: Cyril Smith & Associates Pty Ltd v Owners-Strata Plan No. 64970 [2011] NSWCA 181 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 Category: Principal judgment Parties: The Owners Strata Plan 67202 - Plaintiff (Respondent) Laing O'Rourke (BMC) Limited - Defendant (Applicant) Representation: Counsel: F.C. Corsaro SC with F.G. Kalyk - Plaintiff (Respondent) S.A. Kerr SC - Defendant (Applicant) Solicitors: Turnbull Bowles Lawyers - Plaintiff (Respondent) Maddocks Lawyers - Defendant (Applicant) File Number(s): 2009/298884