Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) (No 2) [2021] NSWCA 35

Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) (No 2) [2021] NSWCA 35

Builder was negligent in directing excavations and failing to install adequate propping, causing damage; responsibility apportioned at 40% to Builder and Insurer, with Insurer’s deductible at $10,000; Builder and Insurer to pay majority of costs, with adjustments for time and lack of success on certain grounds; no liability on Builder and Insurer for costs relating to Hughes.

Parties
First Appellant: The Owners – Strata Plan No. 30791; Second Appellant: Albert Bonansea and Ivana Bonansea; Third Appellant: Angus John Nicholas Brooks; Fourth Appellant: Julius Wolfgang; Fifth Appellant: Roslyn Bainton; Sixth Appellant: Michelle Anne Carruthers; Seventh Appellant: Alison Jean Pate; Eighth Appellant: Vanessa Claire Winley; First Respondent: Southern Cross Constructions (ACT) Pty Ltd (ACN 111 121 450) (in liquidation); Second Respondent: Allianz Australia Insurance Limited (ACN 000 122 850); Third Respondent: Hughes Trueman Pty Ltd (ACN 003 330 783)
Jurisdiction
Australia
Judgment Date
18 March 2021
Procedural Posture
Appeal / Post Appeal Orders and Costs
Outcome
Appeal allowed in part; orders for apportionment of responsibility and costs; parties directed to bring in short minutes of orders within 14 days; liberty to apply reserved.
Legal Topics
Negligence, Proportionate Liability, Apportionable Claims, Concurrent Wrongdoing, Costs Orders, Party/party Costs
Torts Costs Negligence Proportionate Liability Apportionable Claims Concurrent Wrongdoing Costs Orders Party/party Costs

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Parties

The Owners – Strata Plan No. 30791

First Appellant

Albert Bonansea and Ivana Bonansea

Second Appellant

Angus John Nicholas Brooks

Third Appellant

Julius Wolfgang

Fourth Appellant

Roslyn Bainton

Fifth Appellant

Michelle Anne Carruthers

Sixth Appellant

Alison Jean Pate

Seventh Appellant

Vanessa Claire Winley

Eighth Appellant

Southern Cross Constructions (ACT) Pty Ltd (ACN 111 121 450) (in liquidation)

First Respondent

Allianz Australia Insurance Limited (ACN 000 122 850)

Second Respondent

Hughes Trueman Pty Ltd (ACN 003 330 783)

Third Respondent

Procedural Posture

Appeal / Post Appeal Orders and Costs

Legal Issues

  1. 1 Extent of proportionate liability to be apportioned to Southern Cross Constructions (Builder) and others
  2. 2 Calculation and allocation of responsibility for property damage by multiple wrongdoers
  3. 3 Entitlement to costs in multi-party litigation where partial success achieved

Ratio Decidendi

Builder was negligent in directing excavations and failing to install adequate propping, causing damage; responsibility apportioned at 40% to Builder and Insurer, with Insurer’s deductible at $10,000; Builder and Insurer to pay majority of costs, with adjustments for time and lack of success on certain grounds; no liability on Builder and Insurer for costs relating to Hughes.

Court Disposition

Appeal allowed in part; orders for apportionment of responsibility and costs; parties directed to bring in short minutes of orders within 14 days; liberty to apply reserved.

Orders

  • Appellants to file and serve Short Minutes of Orders within 14 days.
  • If dispute arises as to appropriate orders, parties have leave to apply.