Owners Corporation SP 72357 v Dasco Constructions Pty Limited & Ors [2010] NSWSC 819

Owners Corporation SP 72357 v Dasco Constructions Pty Limited & Ors [2010] NSWSC 819

Defence of proportionate liability under Part 4 of the Civil Liability Act 2002 is available to defendants in claims brought under Part 2C of the Home Building Act 1989 for breach of statutory warranties, as these claims are apportionable claims and the Home Building Act does not itself impose several liability.

Parties
Plaintiff: Owners Corporation SP 72357; First Defendant: Dasco Construction Pty Limited; Second Defendant: Lyall Ernest Dix; Third Defendant: Dix Gardner Pty Limited; Fourth Defendant: Peter Prasad Maharaj
Jurisdiction
Australia
Judgment Date
27 July 2010
Procedural Posture
Civil / Interlocutory Determination on Notice of Motion
Outcome
Plaintiff's notice of motion dismissed
Legal Topics
Proportionate Liability, Statutory Warranties, Home Building Act Claims
Construction Law Civil Procedure Proportionate Liability Statutory Warranties Home Building Act Claims

Case Brief

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Parties

Owners Corporation SP 72357

Plaintiff

Dasco Construction Pty Limited

First Defendant

Lyall Ernest Dix

Second Defendant

Dix Gardner Pty Limited

Third Defendant

Peter Prasad Maharaj

Fourth Defendant

Procedural Posture

Civil / Interlocutory Determination on Notice of Motion

Legal Issues

  1. 1 Whether defence of proportionate liability under Part 4 Civil Liability Act is available for claims under Part 2C Home Building Act
  2. 2 Interpretation of s 34 and s 39(c) Civil Liability Act in context of statutory warranties

Ratio Decidendi

Defence of proportionate liability under Part 4 of the Civil Liability Act 2002 is available to defendants in claims brought under Part 2C of the Home Building Act 1989 for breach of statutory warranties, as these claims are apportionable claims and the Home Building Act does not itself impose several liability.

Court Disposition

Plaintiff's notice of motion dismissed

Orders

  • Plaintiff's notice of motion is dismissed
  • Parties to be given opportunity to address costs