The Owners Strata Plan v Brookfield Multiplex Limited [2010] NSWSC 360

The Owners Strata Plan v Brookfield Multiplex Limited [2010] NSWSC 360

The proposed amendments to the List Response are not hopeless or doomed to fail because, despite not expressly pleading the ultimate legal conclusion, the material facts alleged are capable of demonstrating the elements necessary for a duty of care between sub-contractors and subsequent owners. Therefore, leave to amend should be granted.

Jurisdiction
Australia
Judgment Date
23 April 2010
Procedural Posture
Supreme Court of New South Wales Equity Division Technology & Construction List / Application for Leave to Amend List Response
Outcome
Leave granted to amend List Response; cost orders made as set out.
Legal Topics
['amendment of Pleadings' 'proportionate Liability' 'duty of Care' 'statutory Warranties' 'strata Title']
['civil Procedure' 'construction Law'] ['amendment of Pleadings' 'proportionate Liability' 'duty of Care' 'statutory Warranties' 'strata Title']

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Procedural Posture

Supreme Court of New South Wales Equity Division Technology & Construction List / Application for Leave to Amend List Response

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to amend its List Response to plead that certain sub-contractors are concurrent wrongdoers under the Civil Liability Act 2002 (NSW)' 'Whether the proposed amendments sufficiently allege material facts needed to establish a duty of care between sub-contractors and subsequent owners']

Ratio Decidendi

The proposed amendments to the List Response are not hopeless or doomed to fail because, despite not expressly pleading the ultimate legal conclusion, the material facts alleged are capable of demonstrating the elements necessary for a duty of care between sub-contractors and subsequent owners. Therefore, leave to amend should be granted.

Court Disposition

Leave granted to amend List Response; cost orders made as set out.

Orders

  • ["Order the defendant to pay the plaintiffs' costs of and incidental to and thrown away by reason of the amendment of its Technology and Construction list response (subject to subsequent order)." 'Order that the costs of today be costs in the proceedings.' 'Direct the defendant to file and serve its amended list...