79-81 Berry Street

BUILDING AND CONSTRUCTION – design and construct contract between developer and first defendant – plaintiff successor in title to developer – whether first defendant breached statutory warranties under s 18B(a), (b) and (f) of the Home Building Act 1989, as incorporated into the contract – whether facade was designed and constructed in accordance with the “Hyder Specification” as incorporated in the contract – proper construction of the Hyder Specification – whether a reasonable businessperson would construe the Hyder Specification as if the contractor had warranted that the facade would be fully weather tight when tested in accordance with AS 4284 for the building’s entire design life – the extent to which the building has been shown not to be weather tight – whether observational evidence of two lay witnesses demonstrates water ingress in window assemblies beyond those recognised by expert witnesses in joint report – whether first defendant’s failure to conduct prototype testing has any relevant consequence – whether prototype testing conducted on indistinguishable window assemblies at a different site indicates that the building would have passed prototype tests – whether plaintiff’s expert witness’s tests were appropriate to reveal any inadequacy in the design of the facade – whether the first defendant’s proposed remedial work to the facade is necessary and reasonable to compensate the plaintiff – whether replacement of the whole facade is out of all proportion to the benefit that would be obtained – whether plaintiff has established claims in respect to defects associated with mechanical services, bathrooms and ensuites, fire services and general internal defects; BUILDING AND CONSTRUCTION – design and construct sub-contract between first and fourth defendants – whether the developer was a “non-contracting owner” vis-à-vis the sub-contract for the purposes of s 18D(1A) of the Home Building Act– whether plaintiff as successor in title to developer entitled to enforce s 18B statutory warranties against the fourth defendant sub-contractor – whether, in any event, the plaintiff’s claim against the fourth defendant is statute barred – the relevant date of completion of the sub-contract under s 3B of the Home Building Act – whether the limitation period applicable to the s 18B warranties has expired; TORTS – strata titles – whether the first and third defendants owed a duty of care to the plaintiff –whether the plaintiff is relevantly vulnerable – whether case can be distinguished from Brookfield Multiplex Limited v Owners – Strata Plan No 61288 [2014] HCA 36 – whether the fact that the plaintiff has the benefit of statutory warranties under the Home Building Act against the first defendant is a reason to deny the existence of a duty of care

JUDGMENTS AND ORDERS - matters arising from earlier judgment – whether further consideration should be given to claims not developed at hearing – reconciliation of expenses incurred by parties after date the subject of evidence at hearing – quantification of reasonable costs incurred by owners corporation under strata management statement

STRATA TITLES – mixed residential, commercial, retail and car parking development – allocation of the costs of shared services – proper construction of strata management statement – whether allocation of costs of shared services under strata management statement fair and reasonable – whether strata management statement an unjust contract for the purposes of the Contracts Review Act 1980 – whether strata management statement should be re-written – whether any amendment to strata management statement should be retrospective; EQUITY – fiduciary duty – whether developer of building owed a fiduciary duty to owners corporation – whether developer in breach of fiduciary duty by reason of the registration of the strata management statement – whether there was informed consent – whether developer in breach of fiduciary duty by reason of decisions taken by meetings of the owners corporation after the strata plan and strata management statement registered; CONTRACT – whether building manager or strata manager liable to owners corporation in relation to allocation of costs of shared expenses – whether clauses in contract with strata manager limited quantum of damages and time during which proceedings to be commenced enlivened – whether owners corporation had shown damage arising from alleged breaches of contract; STRATA TITLES – whether owners corporation and owner of remaining lots were members entitled to vote at meeting of the building management committee which approved proposed relocation of shared facilities – whether owners corporation estopped by convention from asserting remaining lot owners not entitled to vote because of non-payment of interest on arrears of levies – whether owners corporation entitled to withhold consent to such proposed relocation following resolution of building management committee approving same – relationship of provisions in strata management statement concerning such resolution and provisions entitling owners corporation to withhold consent in certain circumstances – proper construction of strata management statement – whether owners corporation unreasonably withheld consent to proposed relocation of shared facilities; STRATA TITLES – levies – whether owners corporation in arrears – quantum of arrears – whether electricity recoveries properly charged to owners corporation

PRACTICE AND PROCEDURE - legal professional privilege - where privilege asserted by owners corporation against lot owner - whether common or joint interest applies - where subpoenaed documents related to a proceeding that lot owner pursued solely for benefit of owners corporation and in which lot owner sought no relief against owners corporation - where owners corporation sought to dispute that claim by lot owner - where subpoenaed documents also related to other proceedings in which owners corporation and lot owner were adversaries

JUDGMENTS AND ORDERS – matters arising from earlier judgments; COSTS – where plaintiff only successful in relation to one issue – whether Sanderson order should be made concerning costs of the fourth defendant

PROCEDURE – application for leave to reopen – applicable principles – factors relevant to exercise of discretion – lengthy hearing – judgment reserved – material relevant to central question in case – explanation offered for failure to adduce evidence during hearing – prejudice to defendants – likelihood of need to re-convene hearing

EVIDENCE – admissibility – discretion to exclude or limit the use of evidence – whether lay observational evidence adduced by plaintiff after cut-off date of “guillotine order” is evidence-in-chief or in reply – if in chief, whether leave should be given to adduce that evidence – whether defendants would be prejudiced if that evidence is admitted – whether use of evidence should be limited to exclude evidence of April 2015 storm event