Baron Corporation Pty Ltd v Owners of Strata Plan 69567 [2013] NSWCA 238

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Baron Corporation Pty Ltd v Owners of Strata Plan 69567 [2013] NSWCA 238 Hearing dates: 18 July 2013 Decision date: 29 July 2013 Before: McColl JA (at [1]); Barrett JA (at [2]); Young AJA (at [61]) Decision: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days. 3. Appeal allowed. 4. Set aside Order 1 made in the Equity Division on 13 June 2013 and order in lieu: "Order that the question whether (a) for the purposes of the Home Building Act 1989, the second defendant is a 'developer' who did the work, being the construction of the common property in the land the subject of Strata Plan 69567 known as and situated at 37 Morley Avenue Rosebery as contended in paragraph 11A of the Second Further Amended Technology and Construction List Statement; and (b) the plaintiff, being the owner of the common property, is, pursuant to s 18C of that Act, entitled to the benefit of the statutory warranties implied by s 18B of the Act and may enforce the statutory warranties against the second defendant as if the second defendant had constructed the common property under a contract with the plaintiff be answered 'no'". 5. Set aside Order 3 made in the Equity Division on 13 June 2013 and order in lieu: "Order that the costs of the hearing of the separate question on 15 and 16 April 2013 otherwise be the second defendant's costs in the cause." 6. That the respondent pay the costs of the applicant/appellant in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACTS — building, engineering and related contracts — Home Building Act 1989 — warranties implied by statute — whether owners corporation under strata scheme entitled to statutory warranties as against "developer" — liability of non-contracting owner to immediate successor in title — whether appellant was the party "on whose behalf" the "residential building work" was done and therefore a "developer" for the purposes of the Act. Legislation Cited: Home Building Act 1989, ss 3A, 4(1), 6(1)(a), 7, 18B, 18C, s 18D(1A), 92, 99(1) Home Building Amendment (Warranties and Insurance) Act 2010 Strata Schemes (Freehold Development) Act 1973, s 18(1) Cases Cited: Ace Woollahra Pty Ltd v The Owners - Strata Plan 61424 [2010] NSWCA 101; (2010) 77 NSWLR 613 Category: Principal judgment Parties: Baron Corporation Pty Ltd - Appellant The Owners - Strata Plan No 69567 - Respondent Representation: Counsel: