The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Anor (No 3) [2010] NSWSC 60

The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Anor (No 3) [2010] NSWSC 60

The Corporation's Motion to adopt the Negligence Explanation in the Report is dismissed, as there is no proper basis for reconsideration of design negligence findings. The section of the Report relating to the Contents Claim is adopted, based on the Referee's finding of irremediable prejudice to CSA. CSA's limitation defence in respect of negligent design of the windows is dismissed, as the defect was not manifest or reasonably discoverable before the limitation period expired.

Parties
Applicant: The Owners Strata Plan No. 64970; Respondent: Austruc Constructions Limited; Respondent: Cyril Smith & Associates Pty Ltd (CSA); Party: Eko Investments Pty Limited; Party: Traditional Windows Pty Ltd
Jurisdiction
Australia
Judgment Date
18 February 2010
Procedural Posture
Civil / Post Referee Report Adoption and Limitation Defence Determination
Outcome
Corporation's Motion for adoption of Negligence Explanation dismissed; findings in prior judgment not reconsidered; Corporation's Motion for rejection of Report regarding Contents Claim dismissed; Report regarding Contents Claim adopted; CSA's limitation defence dismissed.
Legal Topics
Referee Report Adoption, Design Negligence, Contents Claim, Limitation Defence, Statutory Warranties
Construction Law Professional Negligence Corporate Law Referee Report Adoption Design Negligence Contents Claim Limitation Defence Statutory Warranties

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Parties

The Owners Strata Plan No. 64970

Applicant

Austruc Constructions Limited

Respondent

Cyril Smith & Associates Pty Ltd (CSA)

Respondent

Eko Investments Pty Limited

Party

Traditional Windows Pty Ltd

Party

Procedural Posture

Civil / Post Referee Report Adoption and Limitation Defence Determination

Legal Issues

  1. 1 Whether the Referee's explanation impacts on findings previously made in judgment ([2009] NSWSC 208)
  2. 2 Whether Referee addressed matter remitted regarding architect's liability for Contents Claim
  3. 3 Whether Report in respect of Contents Claim should be adopted

Ratio Decidendi

The Corporation's Motion to adopt the Negligence Explanation in the Report is dismissed, as there is no proper basis for reconsideration of design negligence findings. The section of the Report relating to the Contents Claim is adopted, based on the Referee's finding of irremediable prejudice to CSA. CSA's limitation defence in respect of negligent design of the windows is dismissed, as the defect was not manifest or reasonably discoverable before the limitation period expired.

Court Disposition

Corporation's Motion for adoption of Negligence Explanation dismissed; findings in prior judgment not reconsidered; Corporation's Motion for rejection of Report regarding Contents Claim dismissed; Report regarding Contents Claim adopted; CSA's limitation defence dismissed.

Orders

  • Corporation's Motion for adoption of Negligence Explanation dismissed.
  • Findings in Judgment ([2009] NSWSC 208) regarding design negligence not reconsidered.