The Owners – Strata Plan 81837 v Multiplex Hurstville Pty Ltd [2018] NSWSC 1488

The Owners – Strata Plan 81837 v Multiplex Hurstville Pty Ltd [2018] NSWSC 1488

Multiplex was not an 'owner' under the Home Building Act 1989 (NSW) as it held only contractual rights, not an estate of freehold or direct entitlement to rents and profits; its interest under the DMA, including the call option, was at most contingent until exercised. There was insufficient evidence that SLH 22 held a beneficial interest in the land as a trustee. The Owners Corporation was not a successor in title to Multiplex or SLH 22 for statutory warranty purposes. The DMA was not a contract to do residential building work as Multiplex contracted only to procure such work, not perform it. Representations to the PCA were not made in trade or commerce.

Jurisdiction
Australia
Judgment Date
04 October 2018
Procedural Posture
Principal Judgment / Separate Questions Decided in Advance Under UCPR R 28.2
Outcome
Separate questions each answered "No"
Legal Topics
['owner Definition Under Home Building Act 1989' 'statutory Warranties' 'development Management Agreement' 'developer Liability' 'misleading or Deceptive Conduct' 'trade or Commerce' 'contract to Do Residential Building Work']
['building and Construction' 'equity' 'technology and Construction'] ['owner Definition Under Home Building Act 1989' 'statutory Warranties' 'development Management Agreement' 'developer Liability' 'misleading or Deceptive Conduct' 'trade or Commerce' 'contract to Do Residential Building Work']

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Procedural Posture

Principal Judgment / Separate Questions Decided in Advance Under UCPR R 28.2

Legal Issues

  1. 1 ["Whether Multiplex and SLH 22 were 'owners' (and thus 'developers') under the Home Building Act 1989 (NSW)" "Whether the Owners Corporation is a 'successor in title' to Multiplex or SLH 22 for statutory warranty purposes under s 18C of the Home Building Act 1989 (NSW)" 'Whether the Development Management Agreement was a contract to do residential building work with statutory warranties implied' 'Whether certain representations by Multiplex to the PCA were made in trade or commerce']

Ratio Decidendi

Multiplex was not an 'owner' under the Home Building Act 1989 (NSW) as it held only contractual rights, not an estate of freehold or direct entitlement to rents and profits; its interest under the DMA, including the call option, was at most contingent until exercised. There was insufficient evidence that SLH 22 held a beneficial interest in the land as a trustee. The Owners Corporation was not a successor in title to Multiplex or SLH 22 for statutory warranty purposes. The DMA was not a contract to do residential building work as Multiplex contracted only to procure such work, not perform it. Representations to the PCA were not made in trade or commerce.

Court Disposition

Separate questions each answered "No"

Orders

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