Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550

Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550

Leave to amend was granted because the Owners Corporation made a genuine mistake in naming Loulach Developments Pty Ltd as the builder when it intended to sue the builder; the mistake was not misleading and did not create reasonable doubt as to the intended party; Loulach Steel Pty Ltd, a related entity, was on notice of the defects, the threatened and commenced proceedings, and the mistake; the Owners Corporation did not delay making the amendment application; and Loulach Steel did not establish real and significant prejudice from loss of viable cross-claims outweighing the prejudice to the Owners Corporation if its defects claim against the builder could not be heard on the merits.

Jurisdiction
Australia
Judgment Date
13 May 2020
Procedural Posture
Application to Amend Summons and Technology and Construction List Statement in Building Defects Statutory Warranty Proceedings / Notice of Motion for Leave to Amend to Join Loulach Steel Pty Ltd as Second Defendant and Substitute It as Builder After Expiry of Limitation Period
Outcome
Leave to amend granted; Loulach Steel Pty Ltd joined as second defendant and named as builder in substitution for Loulach Developments Pty Ltd; costs of the motion ordered to be costs in the cause.
Legal Topics
['amendment of Originating Process' 'misnomer or Misdescription of Party' 'joinder of Parties' 'home Building Act Statutory Warranties' 'limitation Periods' 'loss of Cross Claims' 'costs']
['civil Procedure' 'building and Construction' 'strata Law'] ['amendment of Originating Process' 'misnomer or Misdescription of Party' 'joinder of Parties' 'home Building Act Statutory Warranties' 'limitation Periods' 'loss of Cross Claims' 'costs']

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Procedural Posture

Application to Amend Summons and Technology and Construction List Statement in Building Defects Statutory Warranty Proceedings / Notice of Motion for Leave to Amend to Join Loulach Steel Pty Ltd as Second Defendant and Substitute It as Builder After Expiry of Limitation Period

Legal Issues

  1. 1 ['Whether the proposed amendments corrected a mistake in the name of a party within s 65(2)(b) of the Civil Procedure Act 2005 (NSW).' 'Whether the mistake was misleading or caused reasonable doubt as to the identity of the person intended to be sued.' "Whether leave to amend should be granted in the Court's discretion having regard to the dictates of justice, any delay, and alleged prejudice from loss of cross-claims." "What costs order should be made on the plaintiff's notice of motion."]

Ratio Decidendi

Leave to amend was granted because the Owners Corporation made a genuine mistake in naming Loulach Developments Pty Ltd as the builder when it intended to sue the builder; the mistake was not misleading and did not create reasonable doubt as to the intended party; Loulach Steel Pty Ltd, a related entity, was on notice of the defects, the threatened and commenced proceedings, and the mistake; the Owners Corporation did not delay making the amendment application; and Loulach Steel did not establish real and significant prejudice from loss of viable cross-claims outweighing the prejudice to the Owners Corporation if its defects claim against the builder could not be heard on the merits.

Court Disposition

Leave to amend granted; Loulach Steel Pty Ltd joined as second defendant and named as builder in substitution for Loulach Developments Pty Ltd; costs of the motion ordered to be costs in the cause.

Orders

  • ['Pursuant to ss 64(1)(b) and 65(2)(b) of the Civil Procedure Act 2005 (NSW), grant leave to the plaintiff to amend its summons and technology and construction list statement to join Loulach Steel Pty Ltd as the second defendant and name it as the builder in substitution for Loulach Developments Pty Ltd, with the...