The Owners – Strata Plan No 70335 v Walsh Bay Finance Pty Ltd [2015] NSWSC 1031

The Owners – Strata Plan No 70335 v Walsh Bay Finance Pty Ltd [2015] NSWSC 1031

A separate determination of the alleged duty of care was refused because, before evidence had been served, the allegations about Roads and Maritime Services' experience, expertise and approval of the marina design were likely to require a wide-ranging factual inquiry and it was impossible to be satisfied that the inquiry would not overlap with the main proceedings or that separate determination would be useful, economical or fair. The quiet enjoyment claim was struck out because the existence of defects and impeded use of the marina, without an allegation of interruption or disturbance caused by Roads and Maritime Services, its predecessors or their agents, could not amount to a breach of...

Jurisdiction
Australia
Judgment Date
21 July 2015
Procedural Posture
Procedural and Other Rulings / Fifth Defendant's Amended Notice of Motion Seeking Separate Determination and Strike Out; Plaintiff's Application for Leave to Amend
Outcome
Fifth defendant's notice of motion partly allowed; plaintiff's leave application dismissed.
Legal Topics
['separate Determination' 'strike Out' 'duty of Care' 'covenant of Quiet Enjoyment' 'leave to Amend Pleadings' 'marina Defects']
['civil Procedure' 'negligence' 'property Law' 'leases' 'construction Law'] ['separate Determination' 'strike Out' 'duty of Care' 'covenant of Quiet Enjoyment' 'leave to Amend Pleadings' 'marina Defects']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Fifth Defendant's Amended Notice of Motion Seeking Separate Determination and Strike Out; Plaintiff's Application for Leave to Amend

Legal Issues

  1. 1 ['Whether there should be a separate determination of whether Roads and Maritime Services owed the plaintiff the alleged duty of care.' "Whether the plaintiff's claim that Roads and Maritime Services breached the covenant of quiet enjoyment should be struck out or separately determined." 'Whether the plaintiff should be granted leave to amend paragraph C60 of the List Statement to meet the strike out application.']

Ratio Decidendi

A separate determination of the alleged duty of care was refused because, before evidence had been served, the allegations about Roads and Maritime Services' experience, expertise and approval of the marina design were likely to require a wide-ranging factual inquiry and it was impossible to be satisfied that the inquiry would not overlap with the main proceedings or that separate determination would be useful, economical or fair. The quiet enjoyment claim was struck out because the existence of defects and impeded use of the marina, without an allegation of interruption or disturbance caused by Roads and Maritime Services, its predecessors or their agents, could not amount to a breach of...

Court Disposition

Fifth defendant's notice of motion partly allowed; plaintiff's leave application dismissed.

Orders

  • ['Paragraphs C60 and C61 of the Substituted Second Further Amended List Statement be struck out.' "The fifth defendant's amended notice of motion filed on 19 June 2015 be otherwise dismissed." "The plaintiff's application for leave to amend paragraph C60 of the List Statement in the terms set out in MFI 1 be...