The Owners of Strata Plan 76888 v Walker Group Constructions Pty Ltd [2016] NSWSC 541

Supreme Court New South Wales

Medium Neutral Citation: The Owners of Strata Plan 76888 v Walker Group Constructions Pty Ltd [2016] NSWSC 541 Hearing dates: 10 March 2016 Decision date: 02 May 2016 Jurisdiction: Equity Before: Meagher JA Decision: (1) Order that the Referee's Report dated 21 August 2015, with the exception of paragraph [357], be adopted, subject to the following: (a) In support of the Referee's conclusions at [169], [212], [268] and [287], and that the damages for item 23 should be assessed by reference to the cost of pursuing the small gaps alternative solution, I make the additional finding in [59] of these reasons. (b) The Referee's findings in [332]-[337] are adopted only to explain the way in which he reached the conclusions in those paragraphs, which are not otherwise challenged by the defendants. (2) Dismiss the plaintiff's notice of motion filed 24 September 2015. (3) Otherwise dismiss the defendants' notice of motion filed 25 September 2015. (4) Direct the parties within 7 days to lodge with my Associate, Short Minutes of Order which provide for the entry of judgment for the plaintiff in accordance with these reasons and which address the costs of the proceedings, including those of the reference and the adoption proceedings. If the parties cannot agree on the form of these orders, each within a further 7 days should submit the form of orders for which it contends, together with written submissions (not exceeding 4 pages) supporting the orders contended for. The question of the appropriate orders will then be decided on the papers. Catchwords: BUILDING AND CONSTRUCTION – breaches of statutory warranties in s 18B of Home Building Act 1989 (NSW) – adoption of referee's report under Uniform Civil Procedure Rules 2005 (NSW), r 20.24 – where contract required building work comply with provisions of Building Code of Australia – where Code complied with by work in accordance with deemed-to-satisfy provision or alternative solution – where experts agreed that alternative solutions capable of achieving compliance with Code – where referee allowed additional damages to reflect possibility that alternative solution not accepted by certifying authority – whether referee erred in adopting as measure of damages the amount required to pursue alternative solution – whether referee's finding that real possibility alternative solution not be accepted justified by evidence Legislation Cited: Home Building Act 1989 (NSW), ss 18B, 18C, 18D Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 80A, 109C, 109E, 109H Environmental Planning and Assessment Regulation 2000 (NSW) Strata Schemes Management Act 1996 (NSW), ss 65, 65A Supreme Court Rules 1970 (NSW), Pt 72, r 13 Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613 Chocolate Factory Apartments v Westpoint Finance [2005] NSWSC 784 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; 236 CLR 272 The Owners - Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411 Robinson v Harman (1848) 1 Ex 850; 154 ER 363 Stolfa v Hempton [2010] NSWCA 218; 15 BPR 28,253 Category: Principal judgment Parties: The Owners of Strata Plan 76888 (Plaintiff) Walker Group Constructions Pty Ltd (First Defendant) Walker Corporation Pty Ltd (Second Defendant) Representation: Counsel: D Weinberger (Plaintiff) MG Rudge SC with FP Hicks (Defendants)