Owners Corporation & 12 Ors v Lido Real Estate Pty Ltd & Ors [2003] NSWSC 718

Owners Corporation & 12 Ors v Lido Real Estate Pty Ltd & Ors [2003] NSWSC 718

Because the draft amended cross claim pleaded facts concerning the architect's expertise, assumption of responsibility, foreseeability and reliance, and the applicant accepted that the pleaded duty owed to the developers raised a triable issue, the court granted leave to amend and declined to dismiss or strike out the cross claim. The developers nevertheless had to pay the applicant's costs because the original cross claim was deficient and the motion caused the draft amended pleading to be produced.

Jurisdiction
Australia
Judgment Date
07 August 2003
Procedural Posture
Notice of Motion for Summary Dismissal or Strike Out of First Cross Claim, With Proposed Amendment of Cross Claim / Interlocutory Application in the Equity Division Technology and Construction List
Outcome
Leave to amend the cross claim granted; cross claimants to pay the cross defendant's costs; notice of motion otherwise dismissed.
Legal Topics
['summary Dismissal' 'strike Out' 'leave to Amend Cross Claim' 'pure Economic Loss' 'professional Duty of Care' 'contribution and Indemnity' 'costs']
['civil Procedure' 'negligence' 'construction Law'] ['summary Dismissal' 'strike Out' 'leave to Amend Cross Claim' 'pure Economic Loss' 'professional Duty of Care' 'contribution and Indemnity' 'costs']

Case Brief

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Procedural Posture

Notice of Motion for Summary Dismissal or Strike Out of First Cross Claim, With Proposed Amendment of Cross Claim / Interlocutory Application in the Equity Division Technology and Construction List

Legal Issues

  1. 1 ['Whether the first cross claim against the architect should be dismissed under Supreme Court Rules 1970, Pt 13 r 5 or struck out under Pt 15 r 26 for disclosing no cause of action.' 'Whether the proposed amended first cross claim raised a triable issue that the architect owed the developers a duty of care in respect of economic loss.' 'Whether the developers should be given leave to amend their cross claim against the architect.' 'Who should pay the costs of the notice of motion and the amendments.']

Ratio Decidendi

Because the draft amended cross claim pleaded facts concerning the architect's expertise, assumption of responsibility, foreseeability and reliance, and the applicant accepted that the pleaded duty owed to the developers raised a triable issue, the court granted leave to amend and declined to dismiss or strike out the cross claim. The developers nevertheless had to pay the applicant's costs because the original cross claim was deficient and the motion caused the draft amended pleading to be produced.

Court Disposition

Leave to amend the cross claim granted; cross claimants to pay the cross defendant's costs; notice of motion otherwise dismissed.

Orders

  • ['The developers are given leave to file an amended cross claim in the terms of the draft amended first cross claim.' 'The application to dismiss or strike out the first cross claim as against the applicant is otherwise dismissed.' "The developers are to pay the applicant's costs of the notice of motion." "The...