The University of Sydney v Multiplex Constructions Pty Ltd [2023] NSWSC 383

The University of Sydney v Multiplex Constructions Pty Ltd [2023] NSWSC 383

Leave to amend as proposed against McKenzie Group was refused because the proposed paragraph 166A pleaded that McKenzie Group carried out each form of construction work in s 36 of the Design and Building Practitioners Act 2020 (NSW), while the University's actual case was confined to an allegation of substantive control, and because the facts relied upon, namely McKenzie Group's BCA Compliance Report and Certificate of Compliance, did not show that McKenzie Group actually controlled or had the ability and power to control how the cladding work was carried out. The proposed causation pleading for the duty claims was also inadequate because it did not plead how warnings to Multiplex would...

Jurisdiction
Australia
Judgment Date
18 April 2023
Procedural Posture
Equity Technology and Construction List Proceedings Concerning Allegedly Defective Building Work / Plaintiff's Notice of Motion Seeking Leave to File a Second Further Amended Technology and Construction List Statement, Leave to Adduce Further Lay or Expert Evidence, and Disclosure of Identified Documents; Remaining Issues Concerned Amendment as Against Mc Kenzie Group and Costs
Outcome
Leave to amend the Technology and Construction List Statement in the proposed form was refused as against McKenzie Group; the University was given an opportunity to circulate a further proposed amended List Statement.
Legal Topics
['technology and Construction List Statement Amendment' 'design and Building Practitioners Act 2020 (nsw) Statutory Duty of Care' 'meaning of Construction Work and Substantive Control' 'pleading Causation' 'misleading or Deceptive Conduct' 'costs Thrown Away' 'costs of and Occasioned by Amendment']
['civil Procedure' 'building and Construction' 'costs' 'consumer Law' 'negligence'] ['technology and Construction List Statement Amendment' 'design and Building Practitioners Act 2020 (nsw) Statutory Duty of Care' 'meaning of Construction Work and Substantive Control' 'pleading Causation' 'misleading or Deceptive Conduct' 'costs Thrown Away' 'costs of and Occasioned by Amendment']

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Procedural Posture

Equity Technology and Construction List Proceedings Concerning Allegedly Defective Building Work / Plaintiff's Notice of Motion Seeking Leave to File a Second Further Amended Technology and Construction List Statement, Leave to Adduce Further Lay or Expert Evidence, and Disclosure of Identified Documents; Remaining Issues Concerned Amendment as Against Mc Kenzie Group and Costs

Legal Issues

  1. 1 ['Whether the University should be granted leave to amend its List Statement as against McKenzie Group to plead a claim under s 37 of the Design and Building Practitioners Act 2020 (NSW).' 'Whether the proposed pleading adequately alleged that McKenzie Group carried out construction work by having substantive control over the carrying out of building work.' 'Whether the proposed pleading adequately pleaded causation for alleged breach of common law and statutory duties of care.' 'Whether concerns about causation in the Australian Consumer Law misleading or deceptive conduct claim should affect the present leave application.' 'What costs order should be made in relation to the proposed amendments, including the meaning and scope of costs thrown away and costs of and occasioned by the amendment.']

Ratio Decidendi

Leave to amend as proposed against McKenzie Group was refused because the proposed paragraph 166A pleaded that McKenzie Group carried out each form of construction work in s 36 of the Design and Building Practitioners Act 2020 (NSW), while the University's actual case was confined to an allegation of substantive control, and because the facts relied upon, namely McKenzie Group's BCA Compliance Report and Certificate of Compliance, did not show that McKenzie Group actually controlled or had the ability and power to control how the cladding work was carried out. The proposed causation pleading for the duty claims was also inadequate because it did not plead how warnings to Multiplex would...

Court Disposition

Leave to amend the Technology and Construction List Statement in the proposed form was refused as against McKenzie Group; the University was given an opportunity to circulate a further proposed amended List Statement.

Orders

  • ['Leave to amend Technology and Construction List Statement refused.' 'Leave granted to plaintiff to circulate further proposed amended List Statement.' "The parties are to confer and agree on a date by which the University is to circulate any further proposed amended List Statement and a further hearing date for...