The Owners – Strata Plan No 92183 v Samdora Pty Ltd [2023] NSWSC 41

The Owners – Strata Plan No 92183 v Samdora Pty Ltd [2023] NSWSC 41

The second defendant did not establish the high degree of certainty required for summary dismissal. On the interlocutory evidence, the settlement agreement did not incorporate the draft Deed of Settlement or its release: the draft deed had been circulated without instructions to open discussions, was never finalised or executed, execution was never sought, the plaintiff's acceptance was directed to the offer to undertake repair works in accordance with the schedule of repairs, and post-contractual conduct was equivocal or inconsistent with the whole 3 February 2019 offer forming part of the agreement. It was also not clear that, even if the draft deed formed part of the settlement...

Jurisdiction
Australia
Judgment Date
03 February 2023
Procedural Posture
Application Under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (nsw) to Summarily Dismiss Proceedings Against the Second Defendant in a Building Defects Claim / Interlocutory Application; Commercial List Responses Had Not Yet Been Filed
Outcome
Application for summary dismissal dismissed with indemnity costs
Legal Topics
['summary Dismissal' 'building Defects' 'settlement Agreement' 'release' 'ascertaining Contractual Terms' 'post Contractual Conduct' 'statutory Warranties' 'indemnity Costs' 'calderbank Offer']
['civil Procedure' 'building and Construction' 'contract' 'strata Schemes' 'consumer Law'] ['summary Dismissal' 'building Defects' 'settlement Agreement' 'release' 'ascertaining Contractual Terms' 'post Contractual Conduct' 'statutory Warranties' 'indemnity Costs' 'calderbank Offer']

Case Brief

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Procedural Posture

Application Under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (nsw) to Summarily Dismiss Proceedings Against the Second Defendant in a Building Defects Claim / Interlocutory Application; Commercial List Responses Had Not Yet Been Filed

Legal Issues

  1. 1 ['Whether the settlement agreement reached in March 2019 incorporated the terms of a draft Deed of Settlement, including a release barring the current proceedings against the developer' "Whether the plaintiff's claims against the developer were so clearly untenable that they should be summarily dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW)" "Whether post-contractual conduct supported the developer's contention as to the terms of the settlement agreement" "Whether the second defendant should pay the plaintiff's costs of the motion on an indemnity basis"]

Ratio Decidendi

The second defendant did not establish the high degree of certainty required for summary dismissal. On the interlocutory evidence, the settlement agreement did not incorporate the draft Deed of Settlement or its release: the draft deed had been circulated without instructions to open discussions, was never finalised or executed, execution was never sought, the plaintiff's acceptance was directed to the offer to undertake repair works in accordance with the schedule of repairs, and post-contractual conduct was equivocal or inconsistent with the whole 3 February 2019 offer forming part of the agreement. It was also not clear that, even if the draft deed formed part of the settlement...

Court Disposition

Application for summary dismissal dismissed with indemnity costs

Orders

  • ['Dismiss prayer 1 of the motion filed on 24 November 2022.' "Order the second defendant to pay the plaintiff's costs of the motion on an indemnity basis."]