The Owners - Strata Plan No 76171 v Warrenby Pty Limited [2012] NSWSC 1531

The Owners - Strata Plan No 76171 v Warrenby Pty Limited [2012] NSWSC 1531

The pleadings, if proved, disclosed a reasonable cause of action and were not shown to cause prejudice, embarrassment or delay or to be an abuse of process. On the summary judgment application, the third defendant bore the onus of showing that the plaintiff had no reasonable prospect of establishing that he was party to a relevant building contract, but the evidence contained material pointing to some prospect, perhaps a significant prospect, that he was involved as builder. Conflicting evidence as to whether Warrenby, Michael Khoury or Rodney Khoury was responsible required discovery, oral evidence and cross-examination, so the proceedings were not suitable for summary dismissal.

Jurisdiction
Australia
Judgment Date
05 December 2012
Procedural Posture
Interlocutory Application / Notice of Motion by the Third Defendant for Summary Dismissal Under UCPR R 13.4 Or, Alternatively, Strike Out of Pleadings Under UCPR R 14.28
Outcome
Notice of Motion for summary judgment dismissed with costs
Legal Topics
['summary Judgment' 'strike Out of Pleadings' 'statutory Warranties Under the Home Building Act 1989' 'residential Building Work' 'reasonable Cause of Action' 'limitation Period']
['practice and Procedure' 'building and Construction' 'strata' 'civil Procedure'] ['summary Judgment' 'strike Out of Pleadings' 'statutory Warranties Under the Home Building Act 1989' 'residential Building Work' 'reasonable Cause of Action' 'limitation Period']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion by the Third Defendant for Summary Dismissal Under UCPR R 13.4 Or, Alternatively, Strike Out of Pleadings Under UCPR R 14.28

Legal Issues

  1. 1 ['Whether the summons should be dismissed as against the third defendant under UCPR r 13.4 on the basis that no reasonable cause of action was disclosed or the plaintiff had no reasonable prospect of prosecuting the proceedings.' 'Whether the relevant paragraphs of the Technology and Construction List Statement should be struck out under UCPR r 14.28.' 'Whether the plaintiff had some prospect of proving that the third defendant was party to a contract with Merrag or another pursuant to which he designed and constructed the building as a licensed builder.']

Ratio Decidendi

The pleadings, if proved, disclosed a reasonable cause of action and were not shown to cause prejudice, embarrassment or delay or to be an abuse of process. On the summary judgment application, the third defendant bore the onus of showing that the plaintiff had no reasonable prospect of establishing that he was party to a relevant building contract, but the evidence contained material pointing to some prospect, perhaps a significant prospect, that he was involved as builder. Conflicting evidence as to whether Warrenby, Michael Khoury or Rodney Khoury was responsible required discovery, oral evidence and cross-examination, so the proceedings were not suitable for summary dismissal.

Court Disposition

Notice of Motion for summary judgment dismissed with costs

Orders

  • ['The Notice of Motion for summary judgment is dismissed with costs.']