Supreme Court New South Wales Medium Neutral Citation: The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Limited and Ors (No 1) [2012] NSWSC 298 Hearing dates: 29 March 2012 Decision date: 29 March 2012 Jurisdiction: Equity Division Before: Pembroke J Decision: See paragraph [16] Catchwords: STATUTORY INTERPRETATION - Section 109ZK of Environmental Planning and Assessment Act - effect of repeal of Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 - effect of Clause 2 of Schedule 6 of Statute Law (Miscellaneous Provisions) Act (No 2) 2011 - effect of Section 30 Interpretation Act 1987 STATUTORY INTERPRETATION - Clause 8(2)(b) of Schedule 1 of Civil Liability Act - effect of repeal of Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 - whether repeal of Clause 34 affects the operation of Clause 8(2)(b) Legislation Cited: Civil Liability Act 2002 Civil Liability Regulation 2009 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 Interpretation Act 1987 Statute Law (Miscellaneous Provisions) Act (No 2) 2011 Category: Separate question Parties: The Owners Corporation of Strata Plan 61390 - plaintiff Multiplex Corporate Agency Pty Limited - first defendant Multiplex Limited - second defendant Colonial Financial Corporation Limited - third defendant Pia Francesca Design Pty Limited - sixth defendant WSP Lincolne Scott Pty Limited - seventh defendant Representation: Counsel: J Simpkins SC with J Young - for the plaintiff J Stoljar SC with T J Breakspear - for the first and second defendant S R Donaldson SC with M P Elliott - for the third defendant D Miller SC - for the sixth defendant B McManus - for the seventh defendant Solicitors: Colin Biggers and Paisley - for the plaintiff Watson Mangioni Lawyers Pty Limited - for the first and second defendants Henry Davis York - for the third defendant Wotton + Kearney - for the sixth defendant Kennedys - for the seventh defendant File Number(s): 2005/00270936 EX TEMPORE Judgment The Questions 1The parties have agreed that I should hear and determine separately the following issues: 1. Do the provisions of Part 4C of the Environmental Planning and Assessment Act, and more particularly Section 109ZK, apply to claims arising out of the building work described in paragraphs A1 to A3 of the Second Further Amended Technology and Constructions List Statement? 2. Does Clause 8 of the First Schedule to the Civil Liability Act 2002 operate to exclude, from the operation of Part 4 of that Act, claims arising out of the building work described in paragraphs A1 to A3 of the Second Further Amended Technology and Construction List Statement? 2These issues arise partly because until the hearing commenced, all of the parties assumed that the apportionment provisions under the Civil Liability Act 2002 applied to the claims in these proceedings. I have concluded that they do not. I have also concluded that the limitation imposed by Section 109ZK of the Environmental Planning and Assessment Act 1979 does not apply. I will deal first with the limitation issue. Limitation Issue 3Section 109ZK is in Part 4C of the Environmental Planning and Assessment Act 1979. The operation of Part 4C commenced on 1 July 1998. Section 109ZK relevantly provides that a building action may not be brought in relation to any building work more than 10 years after the date on which the relevant final occupation certificate was issued. 4If that provision applies in this case, it will have the effect of barring some of the claims in these proceedings. It does not do so for the following reasons: (a) Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 provides that Part 4C of the Act does not apply in respect of any development carried out under the authority of a development consent granted under "the unamended Environmental Planning and Assessment Act 1979". (b) The definitions make clear that that is a reference to the Environmental Planning and Assessment Act 1979 as it was in force immediately before 1 July 1998. The development consent in relation to the work which is the subject of these proceedings was given in 1996 and 1997. On its face therefore, Clause 34 applies and the limitation imposed by section 109ZK has no application. 5There is, however, a twist. In 2012 the Statute Law (Miscellaneous Provisions) Act (No 2) 2011 took effect. One of its primary objects was to repeal redundant acts, instruments and provisions. Among many others, it repealed the whole of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998. This of course included Clause 34. However that repeal was itself qualified by the savings and transitional provisions embodied in Schedule 6 to the 2011 Act. 6Clause 2 of Schedule 6 provides as follows: 2 Effect of amendment or repeal on acts done or decisions made Except where it is expressly provided to the contrary, if this Act: (a) amends a provision of an Act or an instrument, or (b) repeals and re-enacts (with or without modification) a provision of an Act or an instrument, any act done or decision made under the provision amended or repealed has effect after the amendment or repeal as if it had been done or made under the provision as so amended or repealed. 7The evident purpose of Clause 2 of Schedule 6 is to ensure that the repeal of a provision such as Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 will not, unless expressly stipulated, vitiate any act done, or decision made, under Clause 34 as it was in force before the repeal. In this case, the relevant "act done or decision made" was the commencement of the action or claim outside the limitation period specified in section 109ZK of the Environmental Planning and Assessment Act. 8It follows, in my view, that the commencement of the action or claim has effect, notwithstanding the repeal of Clause 34. Its validity is preserved. The commencement of the action was not out of time originally and is not vitiated by the subsequent repeal of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998. 9Further support for this result follows from the application of Section 30 of the Interpretation Act 1987. It provides among others things that the repeal of a statutory rule does not affect the previous operation of the statutory rule, or anything duly suffered, done or commenced under the statutory rule. It also provides that the repeal of a statutory rule does not affect any right or privilege acquired, accrued or incurred, under the statutory rule. Nor does it affect any legal proceeding in respect of any such right or privilege: Section 30(1)(b), (c) and (e). Further, Section 30(2)(b) provides that the repeal of a statutory rule does not affect any right or privilege saved by the operation of the statutory rule. Apportionment Issue 10The apportionment issue may be resolved by similar but not quite identical reasoning. Part 4C of the Environmental Planning and Assessment Act also included Section 109ZJ. It introduced in 1998 an apportionment regime in relation to a limited category of disputes. However, as I have explained, Clause 34 had the affect of excluding the particular claims in these proceedings from the application of Part 4C. 11The Civil Liability Act 2002 introduced a whole new regime in relation to apportionment. Schedule 1 to that Act made clear that section 109ZJ of the Environmental Planning and Assessment Act was repealed except in certain circumstances. In particular, Clause 8 (2) of Schedule 1 of the Civil Liability Act states that Part 4 (Proportionate Liability) of the Act does not apply to or in respect of: "Any development that is excluded from the operation of Part 4C of the Environmental Planning and Assessment Act 1979 by the operation of Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998." 12Multiplex contends that because of the repeal in 2012 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, Clause 8(2)(b) of Schedule 1 of the Civil Liability Act does not have the effect which its language appears to contemplate. This wafer-thin argument depends on the proposition that the words in Clause 8(2)(b) "is excluded...by the operation of Clause 34" do not, and cannot, apply in circumstances where, since 12 January 2012, Clause 34 has been repealed. 13I do not think that this is a correct, let alone sensible construction. The words "is excluded" look to whether the particular claims are in the category of those that were excluded from, and not caught by, the prior apportionment regime that operated by virtue of Part 4C of the Environmental Planning and Assessment Act. If they were not, then equally the apportionment regime imposed by the Civil Liability Act 2002 does not apply. 14The sense of Clause 8(2)(b) of Schedule 1 to the Civil Liability Act is that if the claims arise in respect of a development that was excluded from the operation of Part 4C of the Environmental Planning and Assessment Act when Clause 34 was in force, then the proportionate liability provisions of the Civil Liability Act will not apply. The words "is excluded...by the operation of clause 34" look to whether the development was or has been excluded. The phrase is not ambulatory. Its grammatical and syntactical sense, in its context, does not require an artificial analysis to be undertaken at the precise time when the argument is taking place regardless of the position that transpired before the 2012 repeal. 15Finally I should add that Clause 5 under the Civil Liability Regulation 2009 has no relevant effect. It does not alter the situation. Clause 5(1) limits the operation of the Civil Liability Act. It does not expand it. And Clause 5(2) qualifies that contraction in a way that has no relevant effect for the purposes of the argument. Orders 16 For those reasons, I answer question 1 "No" and question 2 "Yes". oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2012