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Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66

by Website Administrator


This was considered by the New South Wales Court of Appeal inParkview Constructions Pty Ltd v The Owners – Strata Plan No 90018[2023] NSWCA 66(Parkview Constructions).

The Owners Corporation had commenced proceedings in 2016 for defects within common property within the limitation period under theHome Building Act 1989(6 years for major defects from completion, and 2 years for other defects). They had sued both the builder and the developer (which the NSW legislation permitted them to do). The pleaded cause of action was a breach of statutory warranties.

The progress of proceedings was slow-going. Following the expiry of the limitation period, the Owners Corporation sought leave to amend their pleading in 2021 to include three additional major defects which included issues with the fire rating of external cladding and coatings to glass windows.

The amendments were opposed by the builder and the developer who argued that the amendments introduced new causes of action for breach of contract which were statute barred. The Owners Corporation argued in responsethat the “Onerati principle” applied, which stood for the proposition that‘there is but one cause of action for breach of a contract founded upon breach of a promise such as to carry out the work in a good and workmanlike manner’:Onerati v Phillips Constructions Pty Ltd (in liq)(1989) 16 NSWLR 730 at [746]. To this the Builder argued that the Owners Corporation could not rely on the principle because it was not a party to the building contract.

The NSW Court of Appeal allowed the amendments. The Court held, notwithstanding that the Owners Corporation was not a party to the building contract, theHome Building Act 1989permitted the Owners Corporation to take action for breach of contract (particularly, breach of the implied statutory warranties) as if it was a party to the contract [86]. The Court of Appeal also held that for a breach of statutory warranties, there is a single cause of action complete when a defective structure is provided, irrespective of the number of ways in which defects manifested themselves [90]. The amendment to add new defects did not introduce a new cause of action beyond the existing cause of action pleaded when the proceedings were commenced. But it would be a different scenario if the Owners Corporation had sought to introduce a new cause of action such as negligence [103].

The NSW Court of Appeal stated however that discretionary considerations as to whether to allow the amendment (such as whether the pleadings have closed, whether evidence has been served, and whether the amendment would impact the hearing date) would still need to be considered [105].

The Victorian Approach
The decision inParkview Constructionsshould be contrasted as to how this issue has been approached in Victoria to date. The issue has not been conclusively settled by the Supreme Court of Victoria or the Victorian Court of Appeal.

InMeier v Balbin[2015] VCAT 306, Senior Member Walker held that each new defect in a property amounts to the making of a new cause of action because, under the legislative framework in Victoria, it is open to a party to take multiple proceedings for different breaches of statutory warranties.

InOwners Corporation PS No. 1 PS 519798G v May[2016] VCAT 399, Deputy President Aird permitted an owner to amend a pleading after the expiry of the 10-year limitation period had expired. The amendment was to the effect that the Owners Corporation was seeking to change their case from a breach of the section 8 warranties (contained in theDomestic Building Contracts Act 1995)to the section 137C owner-builder warranties contained in theBuilding Act 1993.Deputy President Aird reasoned that the Owners Corporation was not changing their claim, simply the legal basis of it, which did not give rise to a new cause of action.

InVincentis v SDJ Property Fifth Pty Ltd[2022] VCAT 29,Senior Member Kirton took a ‘defect-by-defect’ approach, considering whether new defects sought to be raised by amendment after the limitation period bore any resemblance to defects complained of in the pleadings filed before the limitation period expired. Those that bore no resemblance to any complaints raised in the ‘in-time’ pleadings were not permitted.

Finally, inOwners Corporation v Wilkinson Developments Pty Ltd[2022] VCAT 956, Judge Burchell (sitting as Vice President of the Tribunal) held that the question of amendment to add new defects after the expiry of the limitation period had to be approached on a case-by-case basis having regard to the overriding obligations of the Tribunal to do fairness

The approaches to amendment of pleadings to add additional defects after the expiry of the relevant limitation period are slightly different between Victoria and New South Wales. Whilst New South Wales has had the benefit of a superior court conclusively determining the issue inParkview Constructions –Victoria has not.

Fabian Brimfield

Liability limited by a scheme approved under professional standards legislation



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