The Owners – Strata Plan SP 73014 v Bowcon Pty Ltd [2015] NSWSC 351

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan SP 73014 v Bowcon Pty Ltd [2015] NSWSC 351 Hearing dates: 30 March 2015 Date of orders: 30 March 2015 Decision date: 30 March 2015 Jurisdiction: Equity Division - Technology and Construction List Before: Kunc J Decision: Adjournment application refused; Judgment for plaintiff Catchwords: BUILDING AND ENGINEERING CONTRACTS – Remedies – Claim for breach of statutory warranties – Whether claim in time – Home Building Act, 1989 ss 18B, 18E PRACTICE – Adjournment – Discretionary considerations – Extended failure to comply with directions to file evidence - No proper or adequate explanation – Adjournment to file evidence refused. Legislation Cited: Civil Procedure Act, 2005 (NSW) Home Building Act, 1989 (NSW) Home Building Amendment Act, 2011 (NSW) Uniform Civil Procedure Rules Part 7 r 7.2 Category: Principal judgment Parties: The Owners – Strata Plan No 73014 (Plaintiff) Bowcon Pty Limited ACN 086 400 197 (First Defendant) Viking Corporation Pty Limited ACN 003 251 358 (Second Defendant) Representation: Counsel: T. Davie (Plaintiff) S. Argyrou (Second Defendant) (In person)

Solicitors: File Number(s): 2012/296131 Publication restriction: No

EX TEMPORE Judgment

Summary 1. HIS HONOUR: These proceedings were commenced by application in the Consumer, Trader and Tenancy Tribunal (as it then was) on 22 March 2011. The plaintiff is The Owners - Strata Plan 73014 (the "Owners"), being a block of units in Alexandria (the "Block"). The first defendant, Bowcon Pty Ltd, was the builder of the Block (the "Builder"). The second defendant, Viking Corporation Pty Ltd, was the developer of the Block (the "Developer"). The Owners sue the defendants for breaches of the statutory warranties set out in s 18B of the Home Building Act, 1989 (NSW) (the "Act"). 2. The proceedings were subsequently transferred to this Court, where they continued as if commenced in the Supreme Court in the Technology and Construction List of the Equity Division. 3. The proceedings are before the Court today for their final hearing. Mr T Davie of Counsel appears for the Owners. For reasons which I will explain, it was not expected that there would be any appearance for the defendants. However, during the hearing Mr Sergios Argyrou ("Mr Argyrou"), a director of the Developer, was granted leave to appear for the Developer. 4. The proceedings are able to be concluded today by judgment against the Builder. As against the Developer, the question for determination is whether or not the Court should accede to an adjournment application made on behalf of the Developer by Mr Argyrou. That application is refused and judgment will also be entered against the Developer.