The Owners – Strata Plan No 84674 v Pafburn Pty Ltd (No 2) [2022] NSWSC 1002

The Owners – Strata Plan No 84674 v Pafburn Pty Ltd (No 2) [2022] NSWSC 1002

The Court refused to dismiss the proceedings against the Developer because it could not conclude that the Owners Corporation was incapable of establishing, on the basis pleaded in the proposed Amended List Statement, that the Developer, through Mr Obeid's concurrent capacities, was able to and in fact did control how the building work was carried out and therefore engaged in construction work within ss 36 and 37 of the Design and Building Practitioners Act 2020 (NSW). Leave to amend was granted because the new defects did not introduce new causes of action, and the asserted prejudice from inability to cross-claim did not justify refusal where the defendants had pleaded the proposed...

Jurisdiction
Australia
Judgment Date
27 July 2022
Procedural Posture
Equity Technology and Construction List; Claim Under the Design and Building Practitioners Act 2020 (nsw) Concerning Alleged Defective Building Work / Applications Concerning Leave to File an Amended Technology and Construction List Statement and Dismissal or Strike Out of the Proceedings Against the Second Defendant
Outcome
Application to dismiss proceedings against the second defendant refused; plaintiff granted leave to amend its List Statement; proceedings stood over for directions.
Legal Topics
['amendment of Pleadings' 'summary Dismissal' 'design and Building Practitioners Act 2020 (nsw) Statutory Duty of Care' 'construction Work' 'substantive Control Over Building Work' 'new Building Defects' 'concurrent Wrongdoers']
['civil Procedure' 'construction Law' 'strata and Building Defects'] ['amendment of Pleadings' 'summary Dismissal' 'design and Building Practitioners Act 2020 (nsw) Statutory Duty of Care' 'construction Work' 'substantive Control Over Building Work' 'new Building Defects' 'concurrent Wrongdoers']

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Procedural Posture

Equity Technology and Construction List; Claim Under the Design and Building Practitioners Act 2020 (nsw) Concerning Alleged Defective Building Work / Applications Concerning Leave to File an Amended Technology and Construction List Statement and Dismissal or Strike Out of the Proceedings Against the Second Defendant

Legal Issues

  1. 1 ['Whether the allegations in the proposed Amended Technology and Construction List Statement, if proven, were capable of establishing that the Developer carried out construction work for the purposes of s 37 of the Design and Building Practitioners Act 2020 (NSW).' 'Whether the proceedings should be dismissed as against the Developer.' 'Whether leave should be granted to amend the List Statement to allege new building defects.' 'Whether the defendants would suffer prejudice from the proposed amendments concerning new defects.']

Ratio Decidendi

The Court refused to dismiss the proceedings against the Developer because it could not conclude that the Owners Corporation was incapable of establishing, on the basis pleaded in the proposed Amended List Statement, that the Developer, through Mr Obeid's concurrent capacities, was able to and in fact did control how the building work was carried out and therefore engaged in construction work within ss 36 and 37 of the Design and Building Practitioners Act 2020 (NSW). Leave to amend was granted because the new defects did not introduce new causes of action, and the asserted prejudice from inability to cross-claim did not justify refusal where the defendants had pleaded the proposed...

Court Disposition

Application to dismiss proceedings against the second defendant refused; plaintiff granted leave to amend its List Statement; proceedings stood over for directions.

Orders

  • ['The Court declined to dismiss the proceedings against the second defendant.' 'The Court granted the plaintiff leave to amend its List Statement in accordance with the document circulated on 28 June 2022.' 'The parties were directed to confer and agree on the orders necessary to give effect to the reasons.' 'If...