Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550

Supreme Court New South Wales

Medium Neutral Citation: Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550 Hearing dates: 6 May 2020 Date of orders: 13 May 2020 Decision date: 13 May 2020 Jurisdiction: Equity - Technology and Construction List Before: Henry J Decision: (1) Pursuant to ss 64(1)(b) and 65(2)(b) of the Civil Procedure Act 2005 (NSW), grant leave to the plaintiff to amend its summons and technology and construction list statement to join Loulach Steel Pty Ltd as the second defendant and name it as the builder in substitution for Loulach Developments Pty Ltd, with the amendments to take effect from 26 June 2019. (2) The plaintiff to file and serve an amended summons and further amended technology and construction list statement on the defendant and Loulach Steel Pty Ltd by 20 May 2020. (3) List the proceedings for directions in the Technology and Construction List at 12.00pm on 22 May 2020. (4) Costs of the plaintiff's notice of motion filed on 18 December 2019 be costs in the cause. Catchwords: CIVIL PROCEDURE - parties - misnomer or misdescription - application to amend - where owners corporation intended to sue builder for alleged defects but mistakenly named the incorrect entity in summons and list statement - whether builder prejudiced from loss of viable cross-claims - where builder on notice of mistake, defects and proceedings - no delay in making application to amend - prejudice to owners corporation if leave not granted - dictates of justice favour granting leave to amend Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64, 64(1)(b), 64(2), 65, 65(2)(b), 65(3), 98(1) Home Building Act 1989 (NSW), ss 3B, 3C, 18B, 18B(2), 18E, Sch 4, cl 109 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 Chahwan v Euphoric Pty Ltd [2009] NSWSC 805 Creevey v Barrois [2005] NSWCA 264 Greenwood v Papademetri [2007] NSWCA 221 Owners – SP 74602 v Brookfield Australia Investments Limited [2015] NSWSC 1916 Owners Corporation Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140 Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579 Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254 The Owners – SP 67635 v Metlej Developments Pty Limited [2013] NSWSC 1564 The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2016] NSWSC 1545 Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, Lexis Nexis Butterworths) Category: Procedural and other rulings Parties: Strata Plan 87060 trading as The Owners – Strata Plan No. 87060 (Plaintiff) Loulach Developments Pty Ltd (Defendant) Loulach Steel Pty Ltd (Third party respondent) Representation: Counsel: D Weinberger (Plaintiff) T Maltz (Third party respondent)