On Tuesday, 27 July 2010 his Honour Einstein J in the NSW
Supreme Court delivered his judgment confirming that the principle
of proportionate liability as set out in Part IV of the Civil
Liability Act 2002 (NSW) (the Civil Liability
Act) applies to the statutory warranties implied by s18B
of the Home Building Act 1989 (NSW) (the Home
The proceedings were commenced by the Owners Corporation against
the first defendant builder for defective building work relying on
the extension of statutory warranties by s18D of the Home Building
The builder's List Response relied on the proportionate
liability provisions of the Civil Liability Act. The plaintiff
brought a Notice of Motion to have those parts of the
builder's List Response struck out on the basis that
proportionate liability is not available to a party defending
claims of breach of the implied warranties under the Home Building
The plaintiff's Notice of Motion was dismissed.
His Honour found that the "ordinary and natural meaning
of s34 (of the Civil Liability Act) means that proportionate
His Honour did not have the benefit of a direct authority on
point but took some not insignificant solace from McDougall
J's decision in The Owners of Strata Plan v Brookfield
Multiplex Limited  NSWSC 360. In that case, in almost
identical factual circumstances, McDougall J allowed the defendant
to amend its List Response to identify its subcontractors as
concurrent wrongdoers, and in so doing "found the
amendments were not hopeless or doomed to fail".
Consideration was given to the timing of a decision on whether
or not a claim is apportionable. The plaintiff contended that the
Court should determine the issue at the interlocutory stage
"as it was likely to affect the course of the litigation
in a number of ways". The decision of Barrett J in
Reinhold v New South Wales Lotteries Corporation (No 2)
 NSWSC 187 supports the proposition that a decision ought not
be made until after the substantive causes of action in question
have been determined. His Honour was content to decide the matter
at the interlocutory stage.
Subject to an appeal by the plaintiff or the Parliament taking
legislative steps to exclude s18B warranties from the proportionate
liability provisions of the Civil Liability Act, a plaintiff or
prospective plaintiff ought to very carefully identify all
tortfeasors prior to commencement of its proceedings.
For defendants, the decision emphasises the significance of
thorough investigation and a timely (pleaded) identification of all
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).