Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors [2011] NSWSC 1302

Supreme Court New South Wales

Medium Neutral Citation: Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors [2011] NSWSC 1302 Hearing dates: 13 October 2011 Decision date: 02 November 2011 Jurisdiction: Equity Division - Commercial List Before: Brereton J Decision: Proceedings deconsolidated. Proceedings to be heard together with evidence in one to be evidence in the other. Second plaintiff granted leave to supplement evidence. Catchwords: PRACTICE AND PROCEDURE - Deconsolidation of proceedings - proceedings involving residential and commercial strata corporations previously consolidated as shared common substratum of facts - commercial corporation unable rely on statutory warranties - of itself insufficient to warrant deconsolidation - general position that plaintiffs should be represented by one solicitor - rule may be dispensed with in certain circumstances - circumstance that commercial corporation loses faith in solicitor - sufficient degree of change in circumstance to warrant deconsolidation - defendants contend deconsolidation will result in trial being attended by issues such as double cross-examination of defendant witnesses - extent to which such issues arise attenuated by (NSW) Evidence Act provisions allowing court to control cross-examination - proceedings deconsolidated and to be heard together with evidence in one to be evidence in other. PRACTICE AND PROCEDURE - Commercial strata corporation seeks leave to supplement liability and quantum evidence - deficiencies identified as to quantum evidence - Makita v Sprowles concerns as to admissibility of expert evidence on liability - different judges take different views as to requirements for admissibility of expert evidence - (NSW) Civil Procedure Act, s 56, makes just resolution of proceedings paramount concern - justice requires parties be permitted to adduce relevant and admissible evidence - only possible prejudice to defendants is that hearing may be delayed - interests of justice demand plaintiff be given leave to supplement quantum and liability evidence. Legislation Cited: (NSW) Civil Procedure Act, 2005, s 56 (NSW) Evidence Act, 1995, s 26, s 42 (NSW) Home Building Act 1989, Part 2C (NSW) Uniform Civil Procedure Rules, 2005, r 6.19, r 6.22, r 12.1, r 28.5 Cases Cited: Carnie v Esanda Finance Corporation Limited (1996) 38 NSWLR 465 Fox v Olsen [1999] SASC 411 Herbert v Badgery (1893) 14 LR (NSW) Eq 321 Lewis v Daily Telegraph Limited (No 2) [1964] 2 QB 601 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Riebolge & Hambros Australia Ltd v Hynd Andary Pty Ltd (1994) 176 LSJS 172 Category: Interlocutory applications Parties: Owners Corporation SP 61287 (first plaintiff) Owners Corporation SP 61288 (second plaintiff) Brookfield Multiplex Limited (first defendant) Multiplex Corporate Agency Pty Limited (second defendant) Building Insurers Guarantee Corporation (third defendant) Representation: Counsel: D S Weinberger (first plaintiff) F Corsaro SC w P Bambagiotti (second plaintiff) J Simpkins SC w T French (first & second defendants) H Rayfield (solicitor) (third defendant) Solicitors: Maccullum Lawyers (first plaintiff) Grace Lawyers (second plaintiff) Gilbert + Tobin Lawyers (first and second defendants) Mills Oakley Lawyers (third defendant) File Number(s): 2008/290669