The Owners-Strata Plan No. 86807 v Crown Group Constructions Pty Ltd (No 2) [2023] NSWSC 520

The Owners-Strata Plan No. 86807 v Crown Group Constructions Pty Ltd (No 2) [2023] NSWSC 520

Leave to amend was granted conditionally because the proposed Design and Building Practitioners Act 2020 (NSW) claim was not bound to fail merely because design work may have been delegated to an architect, the pleading was sufficiently adequate for leave purposes, and the likely prejudice to the plaintiff if leave were refused outweighed the demonstrated prejudice to the builder. However, because non-compliance of the cladding with the Building Code of Australia 2012 was an essential allegation and the plaintiff had not yet established a reasonable basis for it, leave was made conditional on the plaintiff filing and serving a suitable expert report expressing that opinion.

Jurisdiction
Australia
Judgment Date
19 May 2023
Procedural Posture
Equity Technology and Construction List; Civil Procedure Application to Amend Originating Process/list Statement / Notice of Motion Filed on 20 March 2023 Seeking Leave to File an Amended Technology and Construction List Statement Adding a Claim Under the Design and Building Practitioners Act 2020 (nsw)
Outcome
Leave granted to the plaintiff to file the amended technology and construction list statement, conditional on service of expert evidence of Building Code of Australia 2012 non-compliance; costs orders made and matter stood over.
Legal Topics
['amendment of Originating Process' 'design and Building Practitioners Act 2020 (nsw) Duty of Care' 'building Code of Australia Compliance' 'non Delegable Duty' 'proportionate Liability' 'delay and Prejudice' 'costs']
['civil Procedure' 'building and Construction' 'negligence' 'strata'] ['amendment of Originating Process' 'design and Building Practitioners Act 2020 (nsw) Duty of Care' 'building Code of Australia Compliance' 'non Delegable Duty' 'proportionate Liability' 'delay and Prejudice' 'costs']

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Procedural Posture

Equity Technology and Construction List; Civil Procedure Application to Amend Originating Process/list Statement / Notice of Motion Filed on 20 March 2023 Seeking Leave to File an Amended Technology and Construction List Statement Adding a Claim Under the Design and Building Practitioners Act 2020 (nsw)

Legal Issues

  1. 1 ['Whether leave should be given to the plaintiff to file an amended technology and construction list statement adding a claim against the first defendant under s 37 of the Design and Building Practitioners Act 2020 (NSW) in respect of cladding installed on the strata building façade.' 'Whether the proposed claim was bound to fail because the builder did not itself design the external walls.' 'Whether the proposed amended list statement adequately pleaded breach, causation, and loss for the Design and Building Practitioners Act 2020 (NSW) claim.' 'Whether discretionary factors, including delay and asserted irremediable prejudice to the builder, justified refusing leave to amend.' 'Whether it was necessary on the leave application to determine finally whether a claim under s 37 of the Design and Building Practitioners Act 2020 (NSW) is apportionable under Pt 4 of the Civil Liability Act 2002 (NSW).' 'Whether leave should be conditional on the plaintiff serving expert evidence that the cladding did not comply with the Building Code of Australia 2012.']

Ratio Decidendi

Leave to amend was granted conditionally because the proposed Design and Building Practitioners Act 2020 (NSW) claim was not bound to fail merely because design work may have been delegated to an architect, the pleading was sufficiently adequate for leave purposes, and the likely prejudice to the plaintiff if leave were refused outweighed the demonstrated prejudice to the builder. However, because non-compliance of the cladding with the Building Code of Australia 2012 was an essential allegation and the plaintiff had not yet established a reasonable basis for it, leave was made conditional on the plaintiff filing and serving a suitable expert report expressing that opinion.

Court Disposition

Leave granted to the plaintiff to file the amended technology and construction list statement, conditional on service of expert evidence of Building Code of Australia 2012 non-compliance; costs orders made and matter stood over.

Orders

  • ['Leave be given to the plaintiff to file an amended technology and construction list statement in the form provided to my Associate on 1 May 2023 (the List Statement).' 'Order (1) is subject to the plaintiff by 15 June 2023 filing and serving a report from Credwell Consulting or some other suitably qualified expert...