Strata Plan 68372 v Allianz [2012] NSWSC 691

Strata Plan 68372 v Allianz [2012] NSWSC 691

The SMEC report showed by March 2004 a clear link between Geotech's alleged deficiencies in site classification, compaction specification and testing and the damage mechanism later relied on by the owners corporation, namely inadequate footings for the actual site conditions and settlement damage. The alleged defects were therefore patent, damage had accrued well before 11 November 2005, and the limitation defence was clear. Because defending the proceedings would put Geotech to substantial expense, the appropriate course was to set aside the joinder and bring the proceedings against Geotech to an end.

Jurisdiction
Australia
Judgment Date
18 June 2012
Procedural Posture
Civil Proceedings in the Equity Division Technology and Construction List Concerning Alleged Common Property Defects in a Strata Development / Interlocutory Application by the Fourth Defendant to Set Aside Its Joinder and Bring the Proceedings Against It to an End
Outcome
Order joining the fourth defendant set aside. Proceedings dismissed against the fourth defendant with costs.
Legal Topics
['joinder of Parties' 'setting Aside Joinder' 'limitation Defence' 'accrual of Damage in Negligence' 'patent and Latent Defects' 'strata Common Property Building Defects']
['civil Procedure' 'limitation of Actions' 'negligence' 'construction Law'] ['joinder of Parties' 'setting Aside Joinder' 'limitation Defence' 'accrual of Damage in Negligence' 'patent and Latent Defects' 'strata Common Property Building Defects']

Case Brief

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Procedural Posture

Civil Proceedings in the Equity Division Technology and Construction List Concerning Alleged Common Property Defects in a Strata Development / Interlocutory Application by the Fourth Defendant to Set Aside Its Joinder and Bring the Proceedings Against It to an End

Legal Issues

  1. 1 ['Whether the joinder of the fourth defendant should be set aside.' 'Whether there should be judgment for the fourth defendant or the claim against it should be struck out or dismissed.' 'Whether the proceedings against the fourth defendant disclosed no reasonable cause of action or were prejudicial, embarrassing or delaying because a limitation defence was unarguably available.' "Whether the plaintiff's negligence cause of action against the fourth defendant was statute barred because non-trivial damage had accrued before 10 November 2005." 'Whether the alleged defects were patent or latent by reference to the SMEC report and other expert evidence.']

Ratio Decidendi

The SMEC report showed by March 2004 a clear link between Geotech's alleged deficiencies in site classification, compaction specification and testing and the damage mechanism later relied on by the owners corporation, namely inadequate footings for the actual site conditions and settlement damage. The alleged defects were therefore patent, damage had accrued well before 11 November 2005, and the limitation defence was clear. Because defending the proceedings would put Geotech to substantial expense, the appropriate course was to set aside the joinder and bring the proceedings against Geotech to an end.

Court Disposition

Order joining the fourth defendant set aside. Proceedings dismissed against the fourth defendant with costs.

Orders

  • ['Orders made in accordance with prayers 1A, 2, 4 and 5 of the amended notice of motion filed on 4 June 2012.' 'The exhibits on the application are to be handed out.']