Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368

Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368

Leave to amend was granted because the Council brought the application timeously; the alleged illegality arising from the absence of development consent and a construction certificate did not negate the existence of the statutory duty imposed by s 37 of the Design and Building Practitioners Act 2020 (NSW); the word person in s 37 was not to be read down to mean only a practitioner or a person acting in their own capacity, so the proposed allegations that Mr Boulus and Mr McCarthy substantively controlled or supervised the works were not bound to fail; the Corporations Act conflict argument was not made out; and any prejudice could be addressed by costs orders and further directions.

Jurisdiction
Australia
Judgment Date
12 October 2022
Procedural Posture
Equity Technology and Construction List; Procedural Ruling on Leave to Amend Cross Claim Cross Summons and Cross Claim List Statement / Notice of Motion Filed 4 August 2022 Seeking Leave to Amend Cross Claim to Include a Claim Under S 37 of the Design and Building Practitioners Act 2020 (nsw)
Outcome
Leave granted to amend Cross-Claim Cross-Summons and Cross-Claim List Statement; submissions invited as to costs.
Legal Topics
['leave to Amend' 'defective Building Works' 'design and Building Practitioners Act 2020 (nsw) S 37' 'illegality' 'persons Carrying Out Construction Work' 'prejudice and Costs Thrown Away']
['building and Construction' 'practice and Procedure' 'statutory Duty of Care' 'corporations'] ['leave to Amend' 'defective Building Works' 'design and Building Practitioners Act 2020 (nsw) S 37' 'illegality' 'persons Carrying Out Construction Work' 'prejudice and Costs Thrown Away']

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Procedural Posture

Equity Technology and Construction List; Procedural Ruling on Leave to Amend Cross Claim Cross Summons and Cross Claim List Statement / Notice of Motion Filed 4 August 2022 Seeking Leave to Amend Cross Claim to Include a Claim Under S 37 of the Design and Building Practitioners Act 2020 (nsw)

Legal Issues

  1. 1 ['Whether leave to amend should be refused because the alleged absence of valid development consent and a construction certificate gave the Builder a complete defence of illegality to a proposed claim under s 37 of the Design and Building Practitioners Act 2020 (NSW).' "Whether the Builder's managing director, Mr Brian Boulus, and project site supervisor, Mr Bradley McCarthy, were capable of being persons for the purposes of s 37 of the Design and Building Practitioners Act 2020 (NSW)." 'Whether the proposed statutory duty owed by directors of building companies conflicted with the Corporations Act 2001 (Cth) or the independence of a corporation from its directors and members.' 'Whether prejudice to the Builder, Mr Boulus and Mr McCarthy justified refusing leave to amend.']

Ratio Decidendi

Leave to amend was granted because the Council brought the application timeously; the alleged illegality arising from the absence of development consent and a construction certificate did not negate the existence of the statutory duty imposed by s 37 of the Design and Building Practitioners Act 2020 (NSW); the word person in s 37 was not to be read down to mean only a practitioner or a person acting in their own capacity, so the proposed allegations that Mr Boulus and Mr McCarthy substantively controlled or supervised the works were not bound to fail; the Corporations Act conflict argument was not made out; and any prejudice could be addressed by costs orders and further directions.

Court Disposition

Leave granted to amend Cross-Claim Cross-Summons and Cross-Claim List Statement; submissions invited as to costs.

Orders

  • ['The Council was granted leave to amend its Cross-Claim Cross-Summons and Cross-Claim List Statement.' 'The Council was directed to file and serve its Further Amended First Cross-Claim Cross-Summons in the form annexed as Exhibit BV-02 to the affidavit of Brett Kenneth Vincent affirmed 4 August 2022 and the Third...