The Owners Corporation Strata Scheme 56120 v Allianz Australia Insurance Limited & Anor [2009] NSWSC 1480

The Owners Corporation Strata Scheme 56120 v Allianz Australia Insurance Limited & Anor [2009] NSWSC 1480

The second defendant is entitled to bring a proportionate liability defence under s 35 of the Civil Liability Act 2002 (NSW), as following the Civil Liability Regulations 2009 the action is now an 'apportionable claim'. The plaintiff's objections, including regarding alleged prejudice and statute bar, do not preclude the availability of the defence. The second defendant was and remains entitled to plead this statutory defence.

Parties
Plaintiff: The Owners Corporation Strata Scheme 56120; First Defendant: Allianz Australia Insurance Limited; Second Defendant: Rickard Hails Moretti Pty Limited (formerly known as Bonacci Rickard (NSW) Pty Limited)
Jurisdiction
Australia
Judgment Date
15 December 2009
Procedural Posture
Procedural and Other Rulings / Application for Leave to Amend Pleading; Determination of Entitlement to Plead Proportionate Liability Defence
Outcome
Second defendant entitled to bring proportionate liability defence.
Legal Topics
Proportionate Liability, Pleadings, Building Contracts, Civil Liability Act 2002 (nsw)
Practice and Procedure Building and Construction Law Proportionate Liability Pleadings Building Contracts Civil Liability Act 2002 (nsw)

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Parties

The Owners Corporation Strata Scheme 56120

Plaintiff

Allianz Australia Insurance Limited

First Defendant

Rickard Hails Moretti Pty Limited (formerly known as Bonacci Rickard (NSW) Pty Limited)

Second Defendant

Procedural Posture

Procedural and Other Rulings / Application for Leave to Amend Pleading; Determination of Entitlement to Plead Proportionate Liability Defence

Legal Issues

  1. 1 Whether the second defendant is entitled to plead a proportionate liability defence under section 35 of the Civil Liability Act 2002 (NSW)
  2. 2 Whether the Owners Corporation could be a concurrent wrongdoer

Ratio Decidendi

The second defendant is entitled to bring a proportionate liability defence under s 35 of the Civil Liability Act 2002 (NSW), as following the Civil Liability Regulations 2009 the action is now an 'apportionable claim'. The plaintiff's objections, including regarding alleged prejudice and statute bar, do not preclude the availability of the defence. The second defendant was and remains entitled to plead this statutory defence.

Court Disposition

Second defendant entitled to bring proportionate liability defence.

Orders

  • Second defendant permitted to plead a proportionate liability defence under s 35 of the Civil Liability Act 2002 (NSW)