Wu v Carter [2009] NSWSC 355

Wu v Carter [2009] NSWSC 355

The managing agent (third defendant) owed a duty of care to the tenant (plaintiff) in inspecting and completing the condition report. The railing was dangerously defective when the tenancy began. If a proper lay test had been performed, the defect would have been discovered. The managing agent negligently failed to carry out or adequately perform such a test, was thereby negligent, and liable to contribute. Comparing the responsibilities, the primary duty to maintain the railing rested with the owners corporation (fourth defendant). A fair apportionment was 75% to the fourth defendant, and 25% to the third defendant.

Parties
Plaintiff: Li Na Wu; First Defendant: Joan Carter; Second Defendant: Julie Ann Hohne; Third Defendant: Honer & Dodd United Realty Pty Ltd; Fourth Defendant: The Owners - Strata Plan No. 6466; Fifth Defendant: Strata Owners Services Pty Ltd
Jurisdiction
Australia
Judgment Date
14 May 2009
Procedural Posture
Negligence / Judgment After Trial on Cross Claim and Remaining Proceedings
Outcome
Judgment for the fourth defendant on its cross-claim against the third defendant. Proceedings by the plaintiff against the third defendant are dismissed by consent. Each of the third and fourth defendants to bear their own costs of the plaintiff's proceedings.
Legal Topics
Negligence, Injury to Tenant, Landlord and Tenant Liability, Defective Premises, Apportionment of Liability, Body Corporate Responsibility
Torts Property Law Negligence Injury to Tenant Landlord and Tenant Liability Defective Premises Apportionment of Liability Body Corporate Responsibility

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Parties

Li Na Wu

Plaintiff

Joan Carter

First Defendant

Julie Ann Hohne

Second Defendant

Honer & Dodd United Realty Pty Ltd

Third Defendant

The Owners - Strata Plan No. 6466

Fourth Defendant

Strata Owners Services Pty Ltd

Fifth Defendant

Procedural Posture

Negligence / Judgment After Trial on Cross Claim and Remaining Proceedings

Legal Issues

  1. 1 Whether the third defendant (managing agent) owed a duty of care to the tenant (plaintiff) for defect in common property;
  2. 2 Whether there was a breach of any such duty by the third defendant;
  3. 3 Appropriate apportionment of liability between the body corporate and the managing agent for injury caused by the defect.

Ratio Decidendi

The managing agent (third defendant) owed a duty of care to the tenant (plaintiff) in inspecting and completing the condition report. The railing was dangerously defective when the tenancy began. If a proper lay test had been performed, the defect would have been discovered. The managing agent negligently failed to carry out or adequately perform such a test, was thereby negligent, and liable to contribute. Comparing the responsibilities, the primary duty to maintain the railing rested with the owners corporation (fourth defendant). A fair apportionment was 75% to the fourth defendant, and 25% to the third defendant.

Court Disposition

Judgment for the fourth defendant on its cross-claim against the third defendant. Proceedings by the plaintiff against the third defendant are dismissed by consent. Each of the third and fourth defendants to bear their own costs of the plaintiff's proceedings.

Orders

  • Verdict and judgment for the fourth defendant on its cross-claim against the third defendant in the sum of $193,750 and 25% of the plaintiff's costs.
  • The third defendant is to pay the fourth defendant's costs of its cross-claim against the third defendant.