The Owners – Strata Plan No 85561 v Omaya Holdings Pty Ltd [2021] NSWSC 918

The Owners – Strata Plan No 85561 v Omaya Holdings Pty Ltd [2021] NSWSC 918

The court held that, under clause 7.2 of the settlement agreement, upon default continuing for 14 days after notice, the Owners Corporation was entitled to enter judgment for the full sum set out in the pre-signed short minutes of order. The requirements for default were satisfied by non-payment of instalments, failure to rectify defects, and failure to procure an HBCF policy. The argument that the matter required expert determination failed because clause 7.2 was a specific contractual provision governing the result of default, which prevailed over the more general dispute resolution clause.

Parties
Plaintiff/applicant: The Owners – Strata Plan No 85561; First Defendant/respondent: Omaya Holdings Pty Ltd; Second Defendant/respondent: Al Maha Pty Ltd
Jurisdiction
Australia
Judgment Date
27 July 2021
Procedural Posture
Building and Construction – Claim for Building Defects Under Settlement Agreement / Judgment Following Notice of Motion After Settlement Default
Outcome
Judgment for the plaintiff
Legal Topics
Building Defects, Settlement Agreements, Contractual Frustration, Expert Determination, Remedial Contracts
Equity Building and Construction Building Defects Settlement Agreements Contractual Frustration Expert Determination Remedial Contracts

Case Brief

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Parties

The Owners – Strata Plan No 85561

Plaintiff/applicant

Omaya Holdings Pty Ltd

First Defendant/respondent

Al Maha Pty Ltd

Second Defendant/respondent

Procedural Posture

Building and Construction – Claim for Building Defects Under Settlement Agreement / Judgment Following Notice of Motion After Settlement Default

Legal Issues

  1. 1 Whether default was made under the settlement agreement entitling the plaintiff to judgment
  2. 2 Whether dispute was required to be referred to expert determination under cl 9
  3. 3 Whether the remedial contract or settlement agreement was frustrated

Ratio Decidendi

The court held that, under clause 7.2 of the settlement agreement, upon default continuing for 14 days after notice, the Owners Corporation was entitled to enter judgment for the full sum set out in the pre-signed short minutes of order. The requirements for default were satisfied by non-payment of instalments, failure to rectify defects, and failure to procure an HBCF policy. The argument that the matter required expert determination failed because clause 7.2 was a specific contractual provision governing the result of default, which prevailed over the more general dispute resolution clause.

Court Disposition

Judgment for the plaintiff

Orders

  • Judgment for the plaintiff against the defendants in the sum of $1,212,250.00.
  • The defendants to pay the plaintiff's costs of the proceedings in the sum of $183,394.00.