19 October 2022
#Property, Planning & Development, #Construction, Infrastructure & Projects
A recent decision of the NSW Supreme Court has revisited the Onerati principle post section 18E(2), in a successor in title context.
In The Owners – Strata Plan No 90018 v Parkview Constructions Pty Ltd  NSWSC 1123, an owners corporation brought proceedings in the NSW Supreme Court against the builder and developer for 85 defects referable to a breach of one or more statutory warranties. Subsequently, it sought to amend its claim to add:
The builder opposed the application to add the further defects to the statutory warranty claim on the basis that:
Essentially, the contest was between whether the amendments to the statutory warranty claim were to introduce new causes of action and therefore time-barred, or, formed part of the same cause of action and would date back to the commencement of the proceedings.
Three issues were identified for determination:
The Onerati principle, derived from Onerati v Phillips Constructions Pty Limited (In Liq) (1989) 16 NSWLR, holds that there is one cause of action for breach of a contractual promise to carry out works in a good and workmanlike manner, such that judgment in one proceedings will bar subsequent proceedings for different defects, even if those defects were not apparent at the time of the first proceedings.
In November 2006, following a similar controversy in Honeywood v Munnings  NSWCA 215, where Onerati was followed in a Home Building Act (HBA) context, Parliament sought to displace the Onerati principle, in limited circumstances, by inserting (inter alia) section 18E(2) into the HBA via the Home Building Amendment (Statutory Warranties) Bill 2006.
Section 18E(2) provides that where a person has enforced a statutory warranty under section 18B(1) in relation to a particular deficiency, it is not prevented from enforcing the same warranty in relation to a different deficiency in the same work, provided:
The Court held:
The effect of the above was to allow the amendments to the statutory warranty claim, notwithstanding the limitation period had passed, after the proceedings were commenced, but before the motion was filed.
Authors: Christine Jones & Daniel Fane
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The Owners–Strata Plan No 90189 v Parkview Constructions Pty Ltd  NSWSC 1382
EVIDENCE – application for advance ruling – section 192A, Evidence Act 1995 (NSW) – builder seeks ruling that expert reports are inadmissible as irrelevant – case law review and principles regarding advance rulings at – – premature to make rulings sought where builder yet to serve evidence and trial date not allocated.
Design and Building Practitioners Act 2020 (NSW); Evidence Act 1995 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
The Owners – Strata Plan No 90018 v Parkview Constructions Pty Ltd  NSWSC 1123
PRACTICE AND PROCEDURE – proposed amendment to Technology and Construction List Statement – whether amendment will introduce new causes of action under the Home Building Act 1989 (NSW).
BUILDING AND CONSTRUCTION – residential building work – whether separate causes of action for each breach of the statutory warranties under the Home Building Act 1989 (NSW) – whether single cause of action for all breaches of those statutory warranties or for each individual statutory warranty – application of Onerati principle.
Kaye v The Owners – Strata Plan No 4350  NSWSC 1386
LAND LAW – strata title – common property – two by–laws to obtain rights to exclusive use and enjoyment of common property – first proposal offered repairs and maintenance – second proposal offered monetary compensation – other lot owners concerned about noise, loss of privacy, lack of compensation, floodgates for applications – whether refusal of first proposal unreasonable under Strata Schemes Management Act 2015 (NSW), s 149(1) – Tribunal not required to weigh interests in determining whether refusal unreasonable – other lot owners entitled to have regard to own interests and rely on experience and beliefs.
LAND LAW – strata title – Strata Schemes Management Act 2015 (NSW), s 149(2) – s 149(2) considerations addressed to whether to order making of by–law – proponents’ rights and expectations not to be weighed against other lot owners’ interests.
COSTS – party/party – appeal from NCAT Appeal Panel – finding of special circumstances – no mandatory considerations – unsuccessful appeal and fact of legal representation permissible considerations – finding of complexity – Tribunal’s power to award costs absent special circumstances – Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 60 – Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A.
Civil and Administrative Tribunal Act 2013 (NSW); Civil Procedure Act 2005 (NSW); Strata Schemes Management Act 2015 (NSW); Supreme Court Act 1970 (NSW).
Onslow v Cullen (No 2)  NSWSC 1363
COSTS – party/party – appeals – Suitors’ Fund – application for certificate granted.
Home Building Act 1989 (NSW); Suitors’ Fund Act 1951 (NSW).
Dixonbuilding Pty Ltd v Everhard Industries Pty Ltd  NSWDC 464
CIVIL PROCEDURE – summary judgment – whether defendant demonstrates the existence of a triable issue – whether there is no real question to be tried – whether the ultimate outcome turns upon the resolution of disputed issue or issues of fact
CIVIL PROCEDURE – pleadings – striking out – no reasonable defence – whether the defence is so obviously untenable that it cannot possibly succeed
Civil Liability Act 2002 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Boulus Constructions Pty Ltd v Warrumbungle Shire Council  NSWSC 1368
BUILDING AND CONSTRUCTION – where no valid development consent or construction certificate in relation to building works – whether defence of illegality available in relation to claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether managing director and project site supervisor of builder capable of being persons for the purposes of s 37 of that Act.
PRACTICE AND PROCEDURE – whether cross–claimant should have leave to amend Cross–Claim List Statement – where cross–claimant seeks to introduce claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether leave should be refused because of availability of defence of illegality – whether amendment should be disallowed against proposed individual cross–defendants because they are not persons for the purposes of s 37 of that Act – whether amendment should be disallowed on the basis of prejudice to the proposed cross–defendants.
Civil Liability Act 2002 (NSW); Corporations Act 2001 (Cth); Design and Building Practitioners Act 2020 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Interpretation Act 1987 (NSW).
No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd  NSWSC 1345
CONTRACTS – construction – interpretation – interpretation of a clause in a nomination deed for the development of a residential apartment building – where the clause provided for a specific mix of one, two and three bedroom apartments but included a proviso that the mix “may be varied pursuant to” statutory and council requirements – whether the inclusion of studio apartments was a variation falling within that proviso.
Krolczyk v Winner t/as J Winner Building Services  NSWCA 196
BUILDING AND CONSTRUCTION – defective work – duty to mitigate loss – whether appellants acted reasonably to mitigate loss.
Civil Procedure Act 2005 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Wood v Commissioner for Fair Trading  NSWCATOD 114
HOME Building Act – whether evidence establishes a wide range of building construction work experience – whether experience relevant industry experience – individual contractor licence – general building work – whether evidence that work performed can be verified by witnesses who are not supervisors – supervision level of experience required for licence.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).
Hoare v Taylormade Residential Pty Ltd  NSWSC 1359
APPEALS – appeal from NSW Civil and Administrative Tribunal (“NCAT”) to Supreme Court – whether Appeal Panel costs decision should be set aside – where underlying NCAT proceedings resolved by consent orders.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2013 (NSW); Home Building Act 1989 (NSW).
New South Wales
Environmental Planning Instruments
Parramatta Local Environmental Plan 2011 (Map Amendment No 4) – published LW 14 October 2022
Port Stephens Local Environmental Plan 2013 (Amendment No 41) – published LW 14 October 2022
Shoalhaven Local Environmental Plan 2014 (Map Amendment No 5) – published LW 14 October 2022
Woollahra Local Environmental Plan 2014 (Amendment No 27) – published LW 14 October 2022
Ballina Local Environmental Plan 2012 (Amendment No 52) – published LW 7 October 2022
Campbelltown Local Environmental Plan 2015 (Amendment No 32) – published LW 7 October 2022
Carrathool Local Environmental Plan 2012 (Amendment No 1) – published LW 7 October 2022
Dungog Local Environmental Plan 2014 (Amendment No 11) – published LW 7 October 2022
Fairfield Local Environmental Plan 2013 (Amendment No 42) – published LW 7 October 2022
Georges River Local Environmental Plan 2021 (Amendment No 4) – published LW 7 October 2022
Queanbeyan–Palerang Regional Local Environmental Plan 2022 – published LW 7 October 2022
Wagga Wagga Local Environmental Plan 2010 (Amendment No 46) – published LW 7 October 2022
Willoughby Local Environmental Plan 2012 (Amendment No 28) – published LW 7 October 2022
Willoughby Local Environmental Plan 2012 (Amendment No 29) – published LW 7 October 2022
Standard Instrument (Local Environmental Plans) Amendment (Agritourism) Order 2022 – published LW 6 October 2022
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Agritourism) 2022 – published LW 6 October 2022
Building and Other Fair Trading Legislation Amendment Bill 2022
Property Tax (First Home Buyer Choice) Bill 2022
Wingecarribee Local Environmental Plan 2010 (Amendment No 64) – published LW 23 September 2022
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