The Owners – Strata Plan No 89005 v Stromer (No 3) [2022] NSWSC 1707

The Owners – Strata Plan No 89005 v Stromer (No 3) [2022] NSWSC 1707

The Builder's particulars and Scott Schedule did not adequately plead negligence because they alleged, in substance, a failure to construct or supervise so as to prevent defects, without identifying the specific reasonable steps the Building Supervisor should have taken and causally linking those steps to avoidance of the harm. The cross-claim could not continue in its present form, but the Builder should have one further opportunity to seek leave to amend; therefore paragraphs 20 to 33 were struck out rather than the cross-claim being finally summarily dismissed.

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Technology and Construction List Cross Claim Concerning Alleged Building Defects and Statutory Duty of Care / Notice of Motion by the Second Cross Defendant for Summary Dismissal Under Uniform Civil Procedure Rules 2005 (nsw) R 13.4
Outcome
Paragraphs 20 to 33 of the cross-claim were struck out; any application to file an amended cross-claim was timetabled; the cross-claimant was ordered to pay the second cross-defendant's costs of the motion.
Legal Topics
['summary Dismissal' 'strike Out of Pleading' 'cross Claim' 'statutory Duty of Care Under Design and Building Practitioners Act 2020 (nsw) S 37' 'pleading Breach of Duty' 'scott Schedule' 'building Defects']
['civil Procedure' 'construction Law' 'negligence' 'building and Construction'] ['summary Dismissal' 'strike Out of Pleading' 'cross Claim' 'statutory Duty of Care Under Design and Building Practitioners Act 2020 (nsw) S 37' 'pleading Breach of Duty' 'scott Schedule' 'building Defects']

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Procedural Posture

Technology and Construction List Cross Claim Concerning Alleged Building Defects and Statutory Duty of Care / Notice of Motion by the Second Cross Defendant for Summary Dismissal Under Uniform Civil Procedure Rules 2005 (nsw) R 13.4

Legal Issues

  1. 1 ['Whether the cross-claim against the Building Supervisor should be summarily dismissed under Uniform Civil Procedure Rules 2005 (NSW) r 13.4.' 'Whether paragraphs 20 to 33 of the Technology and Construction List Cross-Claim Statement adequately pleaded breach of a duty of care by the Building Supervisor.' 'Whether the Scott Schedule provided by the Builder adequately identified the precautions or steps the Building Supervisor should reasonably have taken to avoid the alleged risk of harm.' 'Whether the Builder should be given a further opportunity to seek leave to file an amended cross-claim.']

Ratio Decidendi

The Builder's particulars and Scott Schedule did not adequately plead negligence because they alleged, in substance, a failure to construct or supervise so as to prevent defects, without identifying the specific reasonable steps the Building Supervisor should have taken and causally linking those steps to avoidance of the harm. The cross-claim could not continue in its present form, but the Builder should have one further opportunity to seek leave to amend; therefore paragraphs 20 to 33 were struck out rather than the cross-claim being finally summarily dismissed.

Court Disposition

Paragraphs 20 to 33 of the cross-claim were struck out; any application to file an amended cross-claim was timetabled; the cross-claimant was ordered to pay the second cross-defendant's costs of the motion.

Orders

  • ['Order that paragraphs 20 to 33 of the Technology and Construction List Cross-Claim Statement filed on 23 December 2021 be struck out.' 'Direct that any application to file an amended Technology and Construction List Cross-Claim Statement be served no later than 17 February 2023 and be made returnable on 24...