The Owners Strata Plan 67202 -v- Laing O'Rourke (BMC) Limited [2011] NSWSC 939

The Owners Strata Plan 67202 -v- Laing O'Rourke (BMC) Limited [2011] NSWSC 939

Summary dismissal was refused because the Tribunal form contained sufficient particulars to enable the defendant to know the nature of the statutory warranty and negligence claims, and sufficient information as to quantum for an unliquidated damages claim within the Tribunal's jurisdiction. In any event, any failure to comply with the regulations would be an irregularity under s 32(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), not a nullity, absent a contrary Tribunal determination. The evidence also did not justify a confident conclusion that the underlying defects in the negligence claim had become manifest more than six years before 27 November 2008, and the...

Jurisdiction
Australia
Judgment Date
17 August 2011
Procedural Posture
Motion for Summary Dismissal in the Equity Division Technology and Construction List / Notice of Motion Filed 29 July 2011 Seeking Summary Dismissal of Statutory Warranty Claims and Dismissal of Part of Negligence Claim as Statute Barred
Outcome
Summary judgment refused with costs
Legal Topics
['statutory Warranties Under the Home Building Act 1989 (nsw)' 'consumer, Trader and Tenancy Tribunal Application Requirements' 'transfer of Tribunal Proceedings to the Supreme Court' 'summary Dismissal' 'negligence Limitation Period' 'defective Construction']
['technology and Construction' 'home Building' 'limitation of Actions' 'civil Procedure'] ['statutory Warranties Under the Home Building Act 1989 (nsw)' 'consumer, Trader and Tenancy Tribunal Application Requirements' 'transfer of Tribunal Proceedings to the Supreme Court' 'summary Dismissal' 'negligence Limitation Period' 'defective Construction']

Case Brief

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Procedural Posture

Motion for Summary Dismissal in the Equity Division Technology and Construction List / Notice of Motion Filed 29 July 2011 Seeking Summary Dismissal of Statutory Warranty Claims and Dismissal of Part of Negligence Claim as Statute Barred

Legal Issues

  1. 1 ['Whether the Home Building Division application lodged with the Consumer, Trader and Tenancy Tribunal was a nullity for failure to comply with reg 11(1)(d) and (e) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW).' "Whether the plaintiff's statutory warranty claims were statute-barred under s 18E(1) of the Home Building Act 1989 (NSW)." 'Whether the negligence claim concerning cracked render/waterproofing finishes was statute-barred under s 14(1) of the Limitation Act 1969 (NSW).' 'Whether limitation issues should be determined summarily before trial on the available evidence.']

Ratio Decidendi

Summary dismissal was refused because the Tribunal form contained sufficient particulars to enable the defendant to know the nature of the statutory warranty and negligence claims, and sufficient information as to quantum for an unliquidated damages claim within the Tribunal's jurisdiction. In any event, any failure to comply with the regulations would be an irregularity under s 32(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), not a nullity, absent a contrary Tribunal determination. The evidence also did not justify a confident conclusion that the underlying defects in the negligence claim had become manifest more than six years before 27 November 2008, and the...

Court Disposition

Summary judgment refused with costs

Orders

  • ["The defendant's application was dismissed with costs."]