The Owners Strata Plan No 66375 v Suncorp Metway Insurance Ltd (No 2) [2017] NSWSC 739

Supreme Court New South Wales

Medium Neutral Citation: The Owners Strata Plan No 66375 v Suncorp Metway Insurance Ltd (No 2) [2017] NSWSC 739 Hearing dates: 15 to 17 May 2017 Decision date: 09 June 2017 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: See paragraphs [94] to [96] of this judgment. Catchwords: AGENCY – whether party entered into contract as agent – whether party acting as undisclosed principal. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – whether owners corporation entitled to statutory warranties – whether loss and damage claimed in respect of defects resulted from breaches of statutory warranties. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)– whether defendants were "developers" within the meaning of s 3A – whether defendants were persons "on whose behalf" building work was done. CONTRACTS – building and construction contract – construction and interpretation – whether the defendants were party to the building contract. EVIDENCE – Evidence Act 1995 (NSW) s 69 – admissibility of evidence – business records – whether minutes of meeting are business records. EQUITY – remedies – rectification Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 76A(1) Evidence Act 1995 (NSW) s 69 Home Building Act 1989 (NSW) ss 3A, 18B, 18C Cases Cited: Ace Woollahra Pty Ltd v The Owners Strata Plan 61424 (2010) 77 NSWLR 613; [2010] NSWCA 101 Andrews v Nominal Defendant [1968] 3 NSWR 686 Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Baron Corp Pty Ltd v Owners of Strata Plan 69567 [2013] NSWCA 238 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) 221 CLR 178 ; [2004] HCA 4 Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd (No 2) [2011] NSWSC 116 Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551; [1995] NSWCA 166 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 Minister for Land & Water Conservation v NTL Australia Pty Ltd (2002) 11 BPR 20,143; [2002] NSWCA 149 R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374; [1980] HCA 2 Simic v New South Wales Land and Housing Corporation (2016) 339 ALR 200; [2016] HCA 47 Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 The Owners of Strata Plan 69567 v Baseline Constructions Pty Ltd (in external administration) [2013] NSWSC 409 Texts Cited: Building Code of Australia 1996 Category: Principal judgment Parties: The Owners Strata Plan No 66375 (Plaintiff) Suncorp Metway Insurance Ltd (First Defendant) Beach Constructions Pty Ltd ACN 003 951 022 (In Liquidation) (Second Defendant) David Russell King (Third Defendant) Gwendoline Louise King (Fourth Defendant) Meridian Estates Pty Ltd (Fifth Defendant) Representation: Counsel: TJ Davie (Plaintiff) PJ Bambagiotti (First Defendant) IG Roberts SC with L Shipway (Third to Fifth Defendants)