The Owners - SP69567 v Landson Alliance Australia [2014] NSWSC 1592

The Owners - SP69567 v Landson Alliance Australia [2014] NSWSC 1592

The defendants did not show that no facts provable within the pleaded and particularised case could sustain the Trade Practices Act claim as an indirect reliance or passive suffering case, nor that Brookfield Multiplex necessarily meant the Owners Corporation could not have suffered loss for that claim. Because that claim would proceed to trial and substantially overlapped with the negligence issues, and because the negligence duty was pleaded as including certification as well as performance of works, the court declined to strike out or summarily dismiss the negligence claim despite the difficulties posed by Brookfield Multiplex.

Jurisdiction
Australia
Judgment Date
07 November 2014
Procedural Posture
Application for Summary Dismissal or Strike Out in Technology and Construction List Proceedings / Notice of Motion by Defendants Filed on 6 August 2014
Outcome
Application for summary dismissal / strike-out dismissed.
Legal Topics
['summary Dismissal' 'strike Out' 'misleading or Deceptive Conduct' 'false Representations as to Standard' 'indirect Reliance' 'duty of Care' 'pure Economic Loss' 'vulnerability' 'defective Common Property']
['civil Procedure' 'trade Practices' 'negligence' 'construction Law' 'strata Title'] ['summary Dismissal' 'strike Out' 'misleading or Deceptive Conduct' 'false Representations as to Standard' 'indirect Reliance' 'duty of Care' 'pure Economic Loss' 'vulnerability' 'defective Common Property']

Case Brief

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Procedural Posture

Application for Summary Dismissal or Strike Out in Technology and Construction List Proceedings / Notice of Motion by Defendants Filed on 6 August 2014

Legal Issues

  1. 1 ["Whether the plaintiff's claims under ss 52 and 53 of the Trade Practices Act 1974 (Cth) should be summarily dismissed or struck out for failure to plead reliance or because the plaintiff suffered no loss." "Whether the plaintiff's negligence claim was doomed to fail because of Brookfield Multiplex Ltd v Owners - Strata Plan No 61288 [2014] 88 ALJR 911." 'Whether, in Technology and Construction List proceedings, the court should entertain an application for summary dismissal or strike-out where substantial overlap would remain between issues going to trial.']

Ratio Decidendi

The defendants did not show that no facts provable within the pleaded and particularised case could sustain the Trade Practices Act claim as an indirect reliance or passive suffering case, nor that Brookfield Multiplex necessarily meant the Owners Corporation could not have suffered loss for that claim. Because that claim would proceed to trial and substantially overlapped with the negligence issues, and because the negligence duty was pleaded as including certification as well as performance of works, the court declined to strike out or summarily dismiss the negligence claim despite the difficulties posed by Brookfield Multiplex.

Court Disposition

Application for summary dismissal / strike-out dismissed.

Orders

  • ["The defendants' notice of motion filed on 6 August 2014 is dismissed." "The defendants are to pay the plaintiff's costs of the motion from 5 September 2014 only." 'The matter is stood over for directions on 21 November 2014.' 'The exhibits on the application are to be handed out, together with the folders of...