Dixonbuild Pty Ltd v Everhard Industries Pty Ltd [2022] NSWDC 464

Dixonbuild Pty Ltd v Everhard Industries Pty Ltd [2022] NSWDC 464

Summary judgment and strike out applications refused due to existence of triable factual and legal issues, including remediation steps, cost quantification, apportionable claim defence, concurrent wrongdoer determination, and mitigation. Defence was not obviously untenable and properly notified plaintiff of case to meet.

Parties
Plaintiff: Dixonbuild Pty Ltd trading as Dixon Homes; Defendant: Everhard Industries Pty Ltd
Jurisdiction
Australia
Judgment Date
11 October 2022
Procedural Posture
Civil / Notice of Motion for Summary Judgment and Strike Out; Interlocutory Decision
Outcome
Notice of Motion dismissed; orders against plaintiff for costs and leave for further argument on indemnity costs.
Legal Topics
Summary Judgment, Strike Out Application, Apportionable Claims, Concurrent Wrongdoer, Mitigation of Loss
Civil Procedure Contract Law Summary Judgment Strike Out Application Apportionable Claims Concurrent Wrongdoer Mitigation of Loss

Case Brief

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Parties

Dixonbuild Pty Ltd trading as Dixon Homes

Plaintiff

Everhard Industries Pty Ltd

Defendant

Procedural Posture

Civil / Notice of Motion for Summary Judgment and Strike Out; Interlocutory Decision

Legal Issues

  1. 1 Whether summary judgment should be granted for plaintiff's claim for damages for breach of contract or breach of statutory duty
  2. 2 Whether Defence should be struck out for disclosing no reasonable defence
  3. 3 Whether the claim is apportionable under Civil Liability Act 2002 (NSW), Pt 4

Ratio Decidendi

Summary judgment and strike out applications refused due to existence of triable factual and legal issues, including remediation steps, cost quantification, apportionable claim defence, concurrent wrongdoer determination, and mitigation. Defence was not obviously untenable and properly notified plaintiff of case to meet.

Court Disposition

Notice of Motion dismissed; orders against plaintiff for costs and leave for further argument on indemnity costs.

Orders

  • Dismiss the plaintiff's Notice of Motion filed on 13 June 2022.
  • Order the plaintiff to pay the defendant's costs of the Notice of Motion.