The Owners - Strata Plan 89412 v Brookfield Residential Developments Australia Pty Ltd [2023] NSWSC 1420

The Owners - Strata Plan 89412 v Brookfield Residential Developments Australia Pty Ltd [2023] NSWSC 1420

Leave was refused because the proposed amendments alleged no more than that Brookfield carried out the role of Superintendent and had certain contractual powers, without pleading what Brookfield did or did not do, or should or should not have done, that could show it performed, coordinated, supervised, project managed or otherwise had substantive control over construction work for the purposes of the DBP Act. The proposed pleading also lacked a factual basis and sufficient particulars for the alleged standard of care, foreseeability and inspection-related failures, instead leaving Brookfield to search through the Spratling Report and other materials to understand the case against it.

Jurisdiction
Australia
Judgment Date
21 November 2023
Procedural Posture
Application for Leave to Amend Technology and Construction List Statement / Procedural Ruling on Notice of Motion Filed on 19 October 2023 Seeking Leave to File a Second Amended Technology and Construction List Statement and a Further Amended Scott Schedule
Outcome
Leave to amend Technology and Construction List Statement as against first defendant refused.
Legal Topics
['design and Building Practitioners Act 2020 (nsw) S 37 Statutory Duty of Care' 'leave to Amend Technology and Construction List Statement' 'pleading and Particulars' 'construction Contract Superintendent']
['building and Construction' 'civil Procedure'] ['design and Building Practitioners Act 2020 (nsw) S 37 Statutory Duty of Care' 'leave to Amend Technology and Construction List Statement' 'pleading and Particulars' 'construction Contract Superintendent']

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Procedural Posture

Application for Leave to Amend Technology and Construction List Statement / Procedural Ruling on Notice of Motion Filed on 19 October 2023 Seeking Leave to File a Second Amended Technology and Construction List Statement and a Further Amended Scott Schedule

Legal Issues

  1. 1 ['Whether the Owners Corporation should be granted leave to amend its Technology and Construction List Statement as against Brookfield.' 'Whether the proposed pleading sufficiently alleged that Brookfield carried out "construction work" for the purposes of s 37 of the Design and Building Practitioners Act 2020 (NSW).' "Whether Brookfield's role as Superintendent and contractual powers under cll 30 and 31 of the Contract provided a pleaded factual basis for alleging building work, supervision, coordination, project management or substantive control." "Whether the proposed pleading gave sufficient particulars of the alleged standard of care, foreseeability, defects and Brookfield's alleged acts or omissions."]

Ratio Decidendi

Leave was refused because the proposed amendments alleged no more than that Brookfield carried out the role of Superintendent and had certain contractual powers, without pleading what Brookfield did or did not do, or should or should not have done, that could show it performed, coordinated, supervised, project managed or otherwise had substantive control over construction work for the purposes of the DBP Act. The proposed pleading also lacked a factual basis and sufficient particulars for the alleged standard of care, foreseeability and inspection-related failures, instead leaving Brookfield to search through the Spratling Report and other materials to understand the case against it.

Court Disposition

Leave to amend Technology and Construction List Statement as against first defendant refused.

Orders

  • ['The Owners Corporation was refused leave to amend its List Statement as against Brookfield in the manner proposed.']