The Owners - Strata Plan No 61288 v Brookfield Australia Investments Ltd [2013] NSWCA 317

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Owners - Strata Plan No 61288 v Brookfield Australia Investments Ltd [2013] NSWCA 317 Hearing dates: 20 August 2013 Decision date: 25 September 2013 Before: Basten JA at [1]; Macfarlan JA at [133]; Leeming JA at [139] Decision: (1) Allow the appeal and set aside the orders made in the Equity Division on 10 October 2012. (2) Answer the separate question - The first respondent owed the appellant a duty to exercise reasonable care in the construction of the building to avoid causing the appellant to suffer loss resulting from latent defects in the common property vested in the appellant, which defects (a) were structural, or (b) constituted a danger to persons or property in, or in the vicinity of, the serviced apartments, or (c) made those apartments uninhabitable. (3) Order the first respondent to pay the appellant's costs in this Court. (4) Direct that the judge determining the outstanding issues in the proceedings determine the proper order as to the costs of the trial of the separate question. [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: BUILDING AND CONSTRUCTION - builder's duty to subsequent owner - latent defects in common property - duty to owners' corporation of commercial premises