The Owners Corporation SP 90832 v Dyldam Developments Pty Ltd [2024] NSWSC 1519

Andrew Hales  |  Michelle Knight  |  Jenny Lin

Key takeouts

An order for the determination of a separate question must be considered in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. A court will consider factors such as whether an answer to the separate question will bring an end to the proceedings, whether it will delay the proceedings or whether the answer lacks utility.

Facts

This decision concerns an order under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that:

‘The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.’

In the principal proceedings, the Owners Corporation (owners) of a residential complex known as the Koi Apartments at 109-113 George Street, Parramatta commenced proceedings against various defendants in relation to alleged defects. 

The third defendant, Dix, was the principal certifying authority for the complex and had issued construction certificates which certified that the complex complied with the relevant legislation. 

The owners claimed that:

• in carrying out its certification and associated functions, Dix owed the statutory duty of care under Part 4 of the Design and Building Practitioners Act 2020 (NSW) (DBP Act); and
• Dix breached that duty of care.

Dix claimed that:

• Part 4 of the DBP Act does not apply to certifiers; and
• if Part 4 of the DBP Act did apply to certifiers, Dix did not carry out construction work within the meaning of the DBP Act.

The owners and Dix consented to, and the court ordered that, the following question be heard separately: ‘Did [Dix] carry out “construction work” within the meaning of Part 4 of the [DBP Act] in respect of the development of the Complex?

Decision

Having heard substantial, but not complete, arguments on the question, Hammerschlag CJ in Eq revoked the order for the determination of the separate question. 

His Honour acknowledged that the court has discretion to make an order under rule 28.2 of the UCPR but that the court must seek to ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’ in accordance with section 56 of the Civil Procedure Act 2005 (NSW).

His Honour considered it to be an important issue worthy of appellate consideration, perhaps even by the High Court. However, answering the question separately could delay the proceedings if, for example, there was an appeal to the determination of the separate question before the trial of the proceedings runs.

Further, Hammerschlag CJ in Eq found the question to be inutile for the following reasons:

• first, the question was not framed by reference to any particularised activity said to be the construction work carried out by Dix;
• second, a positive answer simply requires determination of whether Dix did any construction work, irrespective of whether that work was the subject of a complaint; and
• third, whether the duty applies in a particular circumstance necessitates a factual enquiry, for which the question is not an appropriate vehicle.