The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) [2019] NSWSC 440

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) [2019] NSWSC 440 Hearing dates: 29 January - 6 February; 27-28 February 2019; further submissions 8, 11, 19, and 20 March 2019 Decision date: 18 April 2019 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Defendants not liable for any of the damage to the plaintiff. Proceedings to be dismissed. Catchwords: TORTS – miscellaneous torts – right of support – application of s 177 of the Conveyancing Act 1919 (NSW) – whether loss of support caused damage to adjoining property

NEGLIGENCE – essentials of action for negligence – whether there was a failure to take reasonable care – whether any failure caused damage

NEGLIGENCE – apportionment of responsibility and damages – onus of proof

CIVIL PROCEDURE – pleadings – amendment – joinder of plaintiffs who are otherwise statute barred Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Limitation Act 1969 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes Management Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: City of Swan v McGraw-Hill Companies Inc (2014) 223 FCR 295; [2014] FCA 442 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 Greenwood v Papademetri [2007] NSWCA 221 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (2014) 224 FCR 519; [2014] FCA 880 Llavero v Shearer [2014] NSWSC 1336 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd; Nemeth v Prynew Pty Ltd [2008] NSWSC 118 Strong v Woolworths Ltd (2010) 246 CLR 182; [2012] HCA 5 Sydney Water Corporation v Asset Geotechnical Engineering Pty Ltd [2013] NSWSC 1274 The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) [2019] NSWSC 299 Texts Cited: Conveyancing Amendment (Law of Support) Bill 2000 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 Category: Principal judgment Parties: The Owners – Strata Plan 30791 (First Plaintiff) Albert Bonansea and Ivana Bonansea (Second Plaintiff) Angus John Nicholas Brooks (Third Plaintiff) Julius Wolfgang (Fourth Plaintiff) Roslyn Bainton (Fifth Plaintiff) Michelle Anne Carruthers (Sixth Plaintiff) Alison Pate (Seventh Plaintiff) Vanessa Winley (Eighth Plaintiff) Southern Cross Constructions (ACT) Pty Limited (in liquidation) (First Defendant) Pile & Bucket Pty Limited (Second Defendant) Allianz Australia Insurance Limited (Third Defendant) Northwood Pty Limited (Fourth Defendant) Jeffery and Katauskas Pty Limited (Fifth Defendant) Hughes Trueman Pty Limited (Sixth Defendant) NMK (Aust) Pty Limited (Seventh Defendant) QBE Underwriting Limited as Managing Agent for the Members of Lloyd's Syndicate 386 (Eighth Defendant) Representation: Counsel: A Ogborne with A Avery-Williams (Plaintiffs) R A Cavanagh SC with S Blackman (First and Third Defendants) D Hand (Sixth Defendant) G Ng (Eighth Defendant)