Commercial Residential/Strata Issues

- Who Benefits from sharing the burden if one party cannot be sued? Part IV of the Civil Liability Act (NSW)

In one of the first significant decisions on the impact of proportional liability in this State, Justice Einstein in the Supreme Court before Xmas, made the following findings:

1. The proportionate liability plea has been brought at the first opportunity;
2. There is no delay which might justify depriving the second defendant of a statutory defence otherwise available to it;
3. A proportionate liability defence is available irrespective of the plaintiff's ability to recover from the concurrent wrongdoer;
4. The position in which the plaintiff finds itself is contributed to by its own delayed commencement of this action, which is arguably statute barred already;
5. That plaintiff may be statute barred is a consequence of the legislative scheme and the recent amendment to that scheme.

The effect of the decision was to allow the Strata Managers of a Body Corporate to be added as a party where a rectifying builder BMP was being sued for defective and incomplete work, even though the Plaintiff was time-barred in respect of that party, other defendants liability might be proportionally lessened. The Owners Corporation Strata Scheme 56120 v Allianz Australia Insurance Limited & Anor [2009] NSWSC 1480