The Owners – Strata Plan No 90018 v Parkview Constructions Pty Ltd [2022] NSWSC 1123

The Owners – Strata Plan No 90018 v Parkview Constructions Pty Ltd [2022] NSWSC 1123

Leave to amend was granted because the proposed DBP Act claim against the Builder was at least arguably within time and caused no significant prejudice; the proposed HBA amendments concerning the New Defects amended the existing cause or causes of action for breach of statutory warranties and did not introduce new causes of action for limitation purposes; and the evidence did not establish undue prejudice to the Builder or Developer warranting refusal or an order that the amendment take effect only from the date of the amendment application.

Jurisdiction
Australia
Judgment Date
24 August 2022
Procedural Posture
Equity Technology and Construction List; Application for Leave to Amend Technology and Construction List Statement / Notice of Motion for Leave to Amend; Proceedings Had Not Proceeded Beyond Service of the Summons and Technology and Construction List Statement
Outcome
Plaintiff granted leave to amend its Technology and Construction List Statement; defendants ordered to pay the plaintiff's costs of the Notice of Motion on and from 9 February 2022, with liberty to apply for a different costs order.
Legal Topics
['amendment of Technology and Construction List Statement' 'residential Building Work' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'design and Building Practitioners Act 2020 (nsw) Duty of Care Claim' 'onerati Principle' 'limitation Periods' 'prejudice From Late Amendment']
['practice and Procedure' 'building and Construction' 'statutory Construction'] ['amendment of Technology and Construction List Statement' 'residential Building Work' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'design and Building Practitioners Act 2020 (nsw) Duty of Care Claim' 'onerati Principle' 'limitation Periods' 'prejudice From Late Amendment']

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Procedural Posture

Equity Technology and Construction List; Application for Leave to Amend Technology and Construction List Statement / Notice of Motion for Leave to Amend; Proceedings Had Not Proceeded Beyond Service of the Summons and Technology and Construction List Statement

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend its Technology and Construction List Statement to add a claim against the Builder under s 37 of the Design and Building Practitioners Act 2020 (NSW).' 'Whether amendment to add claims concerning the external façade, coatings on the inside face of glass windows, and stair pressurisation systems under ss 18C and 18D of the Home Building Act 1989 (NSW) would introduce new causes of action that were out of time.' 'Whether separate causes of action arise for each defect constituting a breach of statutory warranties in s 18B of the Home Building Act 1989 (NSW), or whether the Onerati principle applies to claims by a successor in title under ss 18C and 18D.' 'Whether any prejudice to the Builder or Developer warranted refusal of leave or an order that the amendment take effect only from the date of the amendment application.']

Ratio Decidendi

Leave to amend was granted because the proposed DBP Act claim against the Builder was at least arguably within time and caused no significant prejudice; the proposed HBA amendments concerning the New Defects amended the existing cause or causes of action for breach of statutory warranties and did not introduce new causes of action for limitation purposes; and the evidence did not establish undue prejudice to the Builder or Developer warranting refusal or an order that the amendment take effect only from the date of the amendment application.

Court Disposition

Plaintiff granted leave to amend its Technology and Construction List Statement; defendants ordered to pay the plaintiff's costs of the Notice of Motion on and from 9 February 2022, with liberty to apply for a different costs order.

Orders

  • ["The plaintiff have leave to file and serve an Amended Technology and Construction List Statement in the form of the document attached to the plaintiff's Amended Notice of Motion of 11 August 2022." "The defendants pay the costs of the plaintiff's Notice of Motion on and from 9 February 2022." 'Liberty to apply for...