The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511

The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511

The Court held that the effective height of the Building was exactly 25 metres, as the lowest storey providing direct egress to a road or open space was the Ground Floor, not the Garbage Area or Carpark Entry, having regard to how the building was actually constructed and used (and not merely according to the construction certificate plans). Therefore, additional fire safety measures were not required under the Building Code. The claim under the Home Building Act for other fire safety defects (excluding the effective height issue) succeeded against the builder and developer, but claims against the third defendant (Omaya Investments) failed as there was no building contract and no...

Parties
Plaintiff: The Owners - Strata Plan 82089; First Defendant: Omaya Holdings Pty Ltd; Second Defendant: Arinson Pty Limited; Third Defendant: Omaya Investments Pty Ltd; Sixth Defendant: BSM Holdings Pty Limited
Jurisdiction
Australia
Judgment Date
03 December 2024
Procedural Posture
Contract / Building Dispute / Judgment After Hearing
Outcome
Judgment for plaintiff in part; claim otherwise dismissed.
Legal Topics
Fire Safety Defects, Building Code of Australia, Effective Height Calculations, Statutory Warranties, Duty of Care, Vicarious Liability
Building and Construction Contract Torts Statutory Interpretation Fire Safety Defects Building Code of Australia Effective Height Calculations Statutory Warranties +2 more

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Parties

The Owners - Strata Plan 82089

Plaintiff

Omaya Holdings Pty Ltd

First Defendant

Arinson Pty Limited

Second Defendant

Omaya Investments Pty Ltd

Third Defendant

BSM Holdings Pty Limited

Sixth Defendant

Procedural Posture

Contract / Building Dispute / Judgment After Hearing

Legal Issues

  1. 1 Whether the 'Effective Height' of the Building exceeds 25 metres under the Building Code of Australia as at construction
  2. 2 Whether certain fire safety measures were required to be installed
  3. 3 Whether there is liability for fire safety defects under the Home Building Act 1989 (NSW)

Ratio Decidendi

The Court held that the effective height of the Building was exactly 25 metres, as the lowest storey providing direct egress to a road or open space was the Ground Floor, not the Garbage Area or Carpark Entry, having regard to how the building was actually constructed and used (and not merely according to the construction certificate plans). Therefore, additional fire safety measures were not required under the Building Code. The claim under the Home Building Act for other fire safety defects (excluding the effective height issue) succeeded against the builder and developer, but claims against the third defendant (Omaya Investments) failed as there was no building contract and no...

Court Disposition

Judgment for plaintiff in part; claim otherwise dismissed.

Orders

  • Declaration that the effective height of the building is 25 metres.
  • Judgment for the plaintiff against the first and second defendants for $298,462.79 for fire safety defects (other than the effective height issue).