The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019

The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019

Leave to amend was refused because the proposed pleading, particularly paragraph 169E and the causation allegations for both the duty of care and Australian Consumer Law claims, was confused and unclear and did not identify any credible sequence of events by which proper advice, warning or non-certification by McKenzie would probably have led Multiplex, the University or the Superintendent to remove and replace the Façade Panels or procure rectification at no cost to the University.

Jurisdiction
Australia
Judgment Date
24 August 2023
Procedural Posture
Equity Technology and Construction List Proceeding Concerning Allegedly Defective Building Work / Notice of Motion Seeking Leave to File a Second Further Amended Technology and Construction List Statement
Outcome
Leave to amend Technology and Construction List Statement refused.
Legal Topics
['leave to Amend Technology and Construction List Statement' 'breach of Common Law Duty of Care' 'misleading or Deceptive Conduct' 'causation Pleading' 'building Code of Australia Compliance' 'combustible Façade Panels']
['civil Procedure' 'construction Law' 'negligence' 'australian Consumer Law'] ['leave to Amend Technology and Construction List Statement' 'breach of Common Law Duty of Care' 'misleading or Deceptive Conduct' 'causation Pleading' 'building Code of Australia Compliance' 'combustible Façade Panels']

Case Brief

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Procedural Posture

Equity Technology and Construction List Proceeding Concerning Allegedly Defective Building Work / Notice of Motion Seeking Leave to File a Second Further Amended Technology and Construction List Statement

Legal Issues

  1. 1 ['Whether the University should be granted leave to amend its Technology and Construction List Statement to plead breach of common law duty of care against McKenzie.' 'Whether the proposed pleading of reasonable precautions in paragraph 169E was sufficiently clear.' "Whether the proposed causation allegations identified a credible sequence of events by which McKenzie's alleged breach would have led to removal and replacement of the Façade Panels." 'Whether the University should be granted leave to plead misleading or deceptive conduct under s 18 of the Australian Consumer Law against McKenzie.']

Ratio Decidendi

Leave to amend was refused because the proposed pleading, particularly paragraph 169E and the causation allegations for both the duty of care and Australian Consumer Law claims, was confused and unclear and did not identify any credible sequence of events by which proper advice, warning or non-certification by McKenzie would probably have led Multiplex, the University or the Superintendent to remove and replace the Façade Panels or procure rectification at no cost to the University.

Court Disposition

Leave to amend Technology and Construction List Statement refused.

Orders

  • ['Leave to amend the Technology and Construction List Statement in accordance with the proposed document refused.']