The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853

The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853

Leave to amend the List Response to raise the limitation defence was refused because granting it would cause prejudice to the plaintiff, who lost the opportunity to join subcontractors once the limitation defence was withdrawn in 2020, and such prejudice outweighs any prejudice to the defendants. The application for leave to file the Cross-Summons and Cross-Claim was refused as no material facts or defects were pleaded, rendering the proposed pleadings deficient.

Parties
Plaintiff: The Owners – Strata Plan No 89005; First Defendant: Mr Thomas Stromer; Second Defendant: Mr Simone Stromer; Third Defendant: Mr Nathan Stromer; Fourth Defendant: Farad Electric Co Pty Ltd
Jurisdiction
Australia
Judgment Date
14 July 2021
Procedural Posture
Civil / Interlocutory Application for Leave to Amend Pleadings and File Cross Claims
Outcome
Defendants' applications for leave to amend and for leave to file the Cross-Summons and Cross-Claim dismissed (save for unopposed amendments); costs awarded to the plaintiff.
Legal Topics
Amendment of Pleadings, Limitation Periods, Cross Claims, Statutory Warranties, Prejudice, Overriding Purpose
Building and Construction Civil Procedure Amendment of Pleadings Limitation Periods Cross Claims Statutory Warranties Prejudice Overriding Purpose

Case Brief

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Parties

The Owners – Strata Plan No 89005

Plaintiff

Mr Thomas Stromer

First Defendant

Mr Simone Stromer

Second Defendant

Mr Nathan Stromer

Third Defendant

Farad Electric Co Pty Ltd

Fourth Defendant

Procedural Posture

Civil / Interlocutory Application for Leave to Amend Pleadings and File Cross Claims

Legal Issues

  1. 1 Whether leave should be granted to defendants to amend Technology and Construction List Response to re-introduce a limitation defence based on the construction of the Home Building Act 1989 (NSW).
  2. 2 Whether leave should be granted to file a Cross-Summons and Cross-Claim against sub-contractors where no material facts or alleged defects were pleaded.

Ratio Decidendi

Leave to amend the List Response to raise the limitation defence was refused because granting it would cause prejudice to the plaintiff, who lost the opportunity to join subcontractors once the limitation defence was withdrawn in 2020, and such prejudice outweighs any prejudice to the defendants. The application for leave to file the Cross-Summons and Cross-Claim was refused as no material facts or defects were pleaded, rendering the proposed pleadings deficient.

Court Disposition

Defendants' applications for leave to amend and for leave to file the Cross-Summons and Cross-Claim dismissed (save for unopposed amendments); costs awarded to the plaintiff.

Orders

  • Extend the time for the defendants to file their notice of motion seeking leave to amend from 16 June 2021 to 22 June 2021.
  • Grant leave to the defendants to amend their List Response as marked, except for paragraphs A2, B3, C9, and C24, and to delete paragraph 26(b) as marked.