KTLP Enterprises Pty Ltd & Anor v GT Builders Pty Ltd [2025] NTSC 80

PRACTICE AND PROCEDURE - Pleadings - Joinder - Joinder of a party where the limitation period has expired - Absence of formal application for an extension of time but amendment seeking application sought - Whether a joinder application falls afoul of the "no useful purpose" rule -- Discretion of the Court exercised to allow joinder.

PRACTICE AND PROCEDURE - Pleadings - Joinder - Joinder of a party where service of amended writ is sought to be affected in New Zealand -Whether leave is required - principles which apply.

Supreme Court Rules 1987 (NT), rr 1.09, 7.01, 7.02, 9.06, 9.06(b)(ii), 9.11(3)(a), 36.01(1)-(7), 36.03, 63.11, 63.72(9).

Supreme Court Act 1979 (NT), s 21.

Building Act 1993 (NT), ss 54B, 159, 159(1), 159(2), 160, 160(1), 161, Part 5A.

Limitation Act 1981 (NT), ss 44, 44(1) and (3), 48.

Police Administration Act 1978 (NT), s 162(1).

Planning, Development and Infrastructure Act 2016 (SA), s 159.

Development Act 1993 (SA), ss 73, 73(1).

Limitation of Actions Act 1936 (SA), s 48.

Building Act 1993 (Vic), s 134(1).

Competition and Consumer Law Act 2010 (Cth) sch 2 ('Australian Consumer Law'), ss 18, 54(1), 59(1).

Trans-Tasman Proceedings Act 2010 (Cth) s 9.

Wickham Point Pty Ltd v Commonwealth of Australia [2018] NTSC 7;

Bridge Shipping Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231; AGC

Industries Pty Ltd v The Trustee for Trepang Services Unit Trust & Anor

[2022] NTSC 30; Smart v Smart (1992) 2 NTLR 19; Owners of the Szardinia

Sulcis v Owners of the Al Tawwab [1991] 1 Lloyd's Rep 201; Tomsimmat &

Associates Pty Ltd v G & R Investments Pty Ltd (1993) 25 1PR 545; Mannin

Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTSC 119; Dee Jay

Engineering Pty Ltd v Moline Management Pty Ltd [1996] NTSC 60; (1996) 133 FLR 347;

Creedon v Measey Investments Pty Ltd [1990] NTSC 15; Ketteman v Hansel

Properties Ltd [1988] 1 All ER 38; Patten v Lend Lease Funds Management

[2010] NTSC 51; Foster v Vin Keneally & Associates Pty Ltd (1987) 48

NTR 51; Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty

Ltd [2014] NSCA 165; Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017]

WASCA 127; Wardley Australia v Western Australia [1992] HCA 55; (1992) 175 CLR 514;

Northern Territory v Bellamack Pty Ltd [2024] NTSC 66; Walford v

Anglican School for Girls Incorporated v Romaldi Constructions Pty Ltd &

Anor [2020] SADC 146; Woolcock Street Investments Pty Ltd v CDG Pty Ltd

[2004] HCA 16; (2004) 216 CLR 515; Makawe Pty Ltd v Randwick City Council [2009]

NSWCA 412; Owners Corporation Strata Plan 76841 v Ceerose Pty Ltd

[2017] NSWCA 140; Duncan & Anor v Bert Farina Constructions Pty Ltd

[2023] SADC 37; Johnson v Northern Territory of Australia [2014] NTSC

18; Johnson v Northern Territory of Australia [2016] NTSC 49; Phillis v J Anderson Construction Pty Ltd & Ors; Stephen & Anor v J Anderston Constructions Pty Ltd & Ors [2020] NTSC 70; Zurich Insurance Company Ltd v Koper [2023] HCA 25; Weldon v Neal [1887] UKLawRpKQB 161; (1887) 19 QBD 394, referred to.

P Hanford, In Limitation of Actions - Laws of Australia (3rd Ed, 2011).

Plaintiffs: Mills Oakley and Piper Alderman (from 21 July 2025)

KTLP Enterprises Pty Ltd & Anor v GT Builders Pty Ltd [2025] NTSC 80

• [1] The Plaintiffs make application, via an amended summons filed 20 March 2025, for the following orders, inter alia:

(1) Body Corporate for 30-38 Kalymnos Drive Karama Unit Title Scheme (BC 2014/051) is joined as the Third Plaintiff to this proceeding.

(2) Buteline NZ Limited (New Zealand company number 611728 and business number 9429038766220) ('Buteline') is joined as the Second Defendant to this proceeding.

(3) The Plaintiffs have leave under Rule 7.02(2) to serve these proceedings on the Second Defendant in New Zealand.

(4) The Writ filed on 5 July 2024 in this proceeding is amended in accordance with the second amended writ which is annexure LJW-5 to the affidavit of Lecia Jade Wood made 14 May 2025.

• [2] The Plaintiffs rely on the following affidavits: Jamie Russel Elkins made 4 November 2024 and 6 February 2025, Sophia Hopkins Cleveland made 13 March 2025, Jamie Russell Elkins made 13 March 2025, and Lecia Jade Wood made 14 May 2025. The Defendant relies on the affidavits of: Bernadette Raumteen made 30 January 2025 and 17 April 2025. Those affidavits are taken as read.

• [3] In short, the Plaintiffs' claim arises from defective water pipes in a building comprising residential units, constructed by the Defendant builder. The First Plaintiff is the entity who contracted with the Defendant. The Second Plaintiff was the original owner of the land, upon which the building was built, and is now the owner of all of the residential units in the building. The defective pipes are causing water leaks and damaging the building. The Plaintiffs' current claim is that the defective pipes and resultant leaks are caused by a breach by the Defendant of the relevant building contract and certain consumer guarantees under the Building Act 1993 (NT). The units comprise 76 units shown on Plan UTS 2014 A&B.
• [4] The proposed Third Plaintiff is the body corporate for the unit complex, which owns the common property comprising unit 7154 as shown on Plan UTS 2014 A & B. Pursuant to s 37(2) of the Unit Titles Schemes Act 2009 (NT), unless provided otherwise, "a fixed structure (including ceiling, floor, wall) separating a unit from another lot is not part of the unit" and hence part of the common property. However, a note on Plan UTS2014/024 provides otherwise, namely:[1]

(a) Structure of the buildings standing on each unit including walls, floors, ceilings and roofs, forms part of the unit and is not the common property.

(b) Horizontal unit boundaries are the upper surface floor slabs and the under surface of the ceiling slab/roof structure including structural beams.

(c) Vertical unit boundaries are the centrelines of walls where they abut other units, or the external face of walls where they abut Common Property.

• [5] Thus, the Second Plaintiff, as the owner of the units, owns the property comprising the walls of the units (including the pipes in the walls) and the body corporate owns the property comprising the ceiling and outside of the units (including the pipes in the ceiling).[2]
• [6] It is likely, on the Plaintiffs' claim, that the defective pipes will be found within the titles to the individual residential units and within the common property areas. Leaks in areas owned by the Second Plaintiff may have caused or will cause damage to areas owned by the body corporate and vice versa. There may be uncertainty as to where Second Plaintiff's title stops and the body corporate's title starts. As the Second Plaintiff is the owner of all units, it is the only member of the body corporate. The Plaintiffs submit that, if the body corporate is not joined, the Defendant may argue that losses related to areas within the body corporate's title are unrecoverable in these proceedings. That may compel, it is submitted, the body corporate to commence separate proceedings. If joined, the Plaintiffs submit that all losses related to the defective pipework will be capable of being dealt with in one proceeding, and the distinction between the rights of the Second Plaintiff as owner of the units and Second Plaintiff as the sole member of the body corporate will be capable of resolution without necessary practical distinction.
• [7] The Plaintiffs also seek to join the manufacturer of the defective pipe, Buteline, as the Second Defendant, alleging a breach of duty to take care and breaches of the Australian Consumer Law ('ACL').
• [8] The Plaintiffs' application to join the body corporate as the Third Plaintiff proceeds on two bases. First, it is argued that the proposed amendment should be allowed pursuant to Rule 36.01(4) "to correct a mistake in the name of a party". Secondly, if Rule 36.01(4) does not apply, the Plaintiff seeks to have the body corporate joined under Rule 9.06(b)(ii).
• [9] Other amendments are also sought by the Plaintiffs, including adding an additional cause of action in tort, an order for an extension of time under s 44 of the Limitation Act 1981 (NT) and other consequential amendments.

Power to Amend Pleading for Mistake under Rule 36.01(4)

(1) For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the proceeding.

(2) In this Order document includes originating process, an endorsement of claim on originating process and a pleading.

(3) An endorsement of claim or pleading may be amended under subrule (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.

(4) A mistake in the name of a party may be corrected under subrule (1) whether or not the effect is to substitute another person as a party.

(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.

(6) The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under subrule (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.

(7) For the purpose of subrule (6) any other party to the proceeding includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party.

• [11] In respect to the general power to order an amendment under Rule 36.01(1), Luppino AsJ stated in Wickham Point (citations omitted):[3]

Rule 36.01(1) gives the Court a broad discretionary power to allow amendments to documents and that includes pleadings. Subject to case management requirements and the public interest in finalising litigation promptly and properly utilising the Court's resources, in general Courts liberally allow amendments to pleadings provided that the application is made in good faith, any prejudice to the other party can be adequately addressed with an order for costs and the amendment is not futile, namely that the amended pleading would not be liable to strike out.

• [12] Specifically in respect to the application of Rule 36.01(4) to amend the name of a party, the High Court in Bridge Shipping, in respect to identical Victorian provisions, stated "it is proper to give it the widest interpretation which its language will permit".[4]
• [13] Notwithstanding such statements, the discretion to amend is limited to the language used in Order 36. In respect to the amendment of the name of a party, there are three limitations imposed by Order 36: there must be a mistake, it must be "in the name of the party", and an amending order can only be made where the Court is satisfied that any other party to the proceeding would not, by reason of the order, be prejudiced in the conduct of its claim of defence in a way that could not fairly be met by an adjournment, and award of costs or otherwise.[5]

• [14] The affidavit of Ms Cleveland gives evidence as to the issue of a mistake. Ms Cleveland's evidence is as follows:

(a) She is a partner of the firm (or was at the time) on the record for the First and Second Plaintiffs, and was a partner for the firm (and a former firm) who represented them when original instructions were taken and proceedings were commenced. She was the partner in charge of the matter and ultimately responsible for the decisions made in respect to representation.

(b) Instructions were received on or about 14 July 2023 from a director and the principal of the Second Plaintiff, Mr La Pira. At about that time, documents were provided by Mr La Pira to Ms Cleveland's firm, which included documents evidencing pipe failures at his company's leased premises[6] at 30-38 Kalymnos Drive, Karama, and the construction contract between the First Plaintiff and the Defendant for construction of the units.

(c) After it became clear that the Second Plaintiff, as the owner of the Development, was paying the cost of the rectification works caused by the pipe failures, the Second Plaintiff was added as a client of Ms Cleveland's firm on 16 August 2023.

(d) Further investigations were undertaken by the relevant Plaintiffs' solicitors, including obtaining copies of the plans of the unit title schemes for the units. However, it had not occurred to Ms Cleveland, or to the best of her knowledge or anyone else involved, that the body corporate (not the Second Plaintiff) may own the pipes which were failing and causing damage, and which required repair, and may have suffered its own recoverable loss itself in that capacity and therefore may also need to make a claim against the Defendant in its own name to ensure that all losses caused by the pipe failures were recovered.

(e) On or about 27 June 2024, another of the Plaintiffs' solicitors, who was working on the file, drafted the writ for Ms Cleveland to settle in order to commence proceedings against the Defendant. That writ only named the First and Second Plaintiffs. Ms Cleveland settled the writ in the terms in which it was filed on 5 July 2024, naming only the First and Second Plaintiffs. A copy was sent to Mr La Pira on 4 July 2024 for instructions to file and following those instructions the writ was filed.

(f) At the time of settling the writ and in seeking and obtaining instructions, Ms Cleveland believed that the First and Second Plaintiffs were the only entities who might have suffered loss, who might have a claim against the Defendant and who therefore needed to be named as plaintiffs. Had it occurred to Ms Cleveland that the body corporate may have also suffered a distinct and separate loss as a result of the pipe failures, she would have added it as the third plaintiff to the draft writ and sought instructions. She believes those instructions would have been given by Mr La Pira, given that the Second Plaintiff owns all of the units (and is therefore the only member of the body corporate).

(g) It was only in or about November 2024, when Senior Counsel was briefed, that Ms Cleveland became aware that the body corporate may have a distinct and separate loss as a result of the pipe failures and should be named as a plaintiff, and that the basis upon which she had thought that only the First and Second Plaintiffs had suffered recoverable loss when she settled the writ, was mistaken.

• [15] There certainly has been a mistake, as another potential plaintiff was omitted from the claim.

• [16] Rule 36.01 is qualified by Rules 36.01(4) (and (5) and (7)), by reference to amendment flowing from a mistake "in the name of the party". The rule applies as much to plaintiffs as defendants.[7]
• [17] As stated in AGC Industries, where there is a finding that a mistake has been made, the cases will generally fall into two categories: On the one hand, those where the mistake is properly one of identity and, on the other hand, those cases where the mistake is as to the legal recourse available.[8]
• [18] In this application, it is the Plaintiffs' case there was a mistake in the names of the Plaintiffs, and the solicitors for the Plaintiffs had intended to sue in the name of the owner/s of the pipes/land, being the Second Plaintiff and the body corporate.
• [19] In Bridge Shipping, McHugh J stated the test, as set out in Al Tawwab[9] (citations omitted):[10]

In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v Charrington it was the current landlord. In Thistle Hotels v MacAlpine the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise.

• [20] Although the above is cast primarily in terms of "a plaintiff always intends to sue a person for the wrong which he has suffered", it could alternatively be put as "plaintiffs always intend to sue a person for the wrongs they have suffered". As noted above, the test cannot be as wide as that. It must be necessary to identify an intending plaintiff by reference to a description which was more or less specific to the particular case. Here, the Plaintiffs say that description is "the owner of the land" or the "owner of the pipes owned by the owner of the land". That is, it was the intention to sue on behalf of the owners of the land who owned the defective pipes. In this case, not only the Second Plaintiff (in respect to the 75 units it owns) but the body corporate (which owns the common property).
• [21] Whether a decision is a relevant mistake must be judged according to the facts and circumstances that existed when it happened, not according to the wisdom of hindsight.[11] In categorising the mistake, the question to be answered is: "what were [the intentions of the person who lodged the writ] at the time [they] caused the writ to issue, assessing the evidence of those intentions in the light of the then surrounding circumstances, including [their] then state of knowledge and belief?".[12] As stated in Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd:[13]

It is clear that if a solicitor for an insurer, intending to issue proceedings in the name of a person whom he identified by a particular description, was mistaken as to the name of the person who answered that description, that is a mistake in the name of the party.

• [22] In Dee Jay Engineering, evidence had been given by the solicitor for the insurer before the Master (including via cross examination). The solicitor had commenced proceedings in the respondent's name, as purportedly the owner of the relevant property, instead of in the name of the two other true owners. The solicitor's evidence was that he believed at times (or at the relevant times) that the tank (the property in question which had been damaged) was owned by the respondent, and that when drafting the statement of claim, he intended the proceedings to be brought in the name of the owner of the tank which he then believed to be the respondent. Mildren J noted that, in respect to the solicitor for the insurer, "the predominant consideration in his mind was ownership, that his intention was to sue in the name of the owner of the goods and that he was mistaken as to the name of the owner".[14]
• [23] In Mannin, proceedings were brought in the name of the plaintiff[15] who, at the time of the drafting of the statement of claim, had planned to be the operator of a supermarket. However, the plaintiff did not actually commence operating the supermarket; another entity called Eire Pty Ltd commenced operating it, and it would have suffered the claimed loss. Nevertheless, the proceedings were commenced in the plaintiff's name and an application was brought to amend the name under Rule 36.01(4). The plaintiff's solicitor gave evidence that he had been instructed to recover, from the defendant, the damages which would be suffered by the plaintiff as a result of delay in the completion of the construction of the supermarket. He gave evidence that he had been mistaken in believing, when he drafted the statement of claim, that the plaintiff was the entity which would have conducted the business during the relevant period where the losses were claimed. It would seem on the evidence that, between the instructions and when the supermarket actually commenced operation some two years later, the solicitor had not been made aware of the change in operator and "I had no reason to consider and I never considered, that some other entity [other than the appellant] may have been proposed to conduct the business of the supermarket".[16] The solicitor's instructions were to claim for loss of profits suffered by the plaintiff and he did not receive instructions to the contrary. It was not until some 10 months after issuing the writ that the solicitor first realised that his earlier belief based on instructions was mistaken and, had he known of the true state of affairs, he would have included the operator as a second plaintiff. In Mannin, the plaintiff argued that the loss of profits sought should be characterised as a claim for loss of profits by the operator of the supermarket. That is, the mistake related to the intention to sue by reference to the ownership of the business of the supermarket. It was argued that the solicitor had got the description correct (the owner of the business of the supermarket) but the identity wrong. In Mannin, there was evidence of the precise nature of the instructions, namely to "sue for the loss of profits that would be suffered by the plaintiff". The solicitor had not received any other instructions. The Court of Appeal held that, on the evidence, there had been no mistake as to the client's instructions as to the identity of the proposed supermarket trader at the time he caused the writ to issue. The Court held "that the solicitor's mistake at the time was as to the extent of the liability in damages of the plaintiff to the defendant; such a mistake is an error of law as to the plaintiff's rights, not a mistake as to the name within Rule 36.01(4)". The Court of Appeal distinguished Mannin from Dee Jay Engineering in that the solicitor had made no relevant mistake as to his instructions on the identity of the entity claiming for loss of profits, and no mistake by the client was relied on. In terms of the test from Bridge Shipping, the Court of Appeal noted that the particular description relied on was "the intended operator of the supermarket". That is, the solicitor intended the claim for loss of profits to be the entity to have operated the supermarket during the period of delay. The Court held that such a conclusion could not be drawn from the solicitor's affidavit or the statement of claim, which indicated that, in accordance with his instructions, the intention was that the purchaser of the supermarket would be the plaintiff, and that he acted in accordance with that intention. The mistake comprised instructions that the plaintiff had the right to claim for loss of profits against the defendant. It was not a mistake as to the name of a party but as to liability.
• [24] In AGC Industries, significant evidence was given as to the surrounding circumstances relating to the decision to commence proceedings in the name of the wrong employer plaintiff. That included various Practice Direction 6 correspondence, and emails passing between solicitors for the plaintiff and defendants, the solicitors for the plaintiff and their instructing insurer, and internally within the plaintiff's solicitor's firm. The facts in AGC Industries reveal some degree of confusion as to the true employer of the worker, the plaintiff, but in the end a decision was made to name the employer who the plaintiff's solicitor thought was the employer as listed on an insurance policy (and a settlement agreement). That turned out to be the wrong name of the employer of the worker. The Court held in AGC Industries that, on the evidence, the relevant decision-maker for the filing of the writ was the plaintiff's solicitor, not the instructor for the insurer, who had simply been following the solicitor's suggestion. The evidence showed that the plaintiff's solicitor turned his mind to the question of the worker's employer, he asked for clarification from the insurer who did not know, and he then turned the matter over to a paralegal who reviewed the file which contained the name of the wrong employer. AGC Industries was distinguished from Mannin on the basis that the intention of the solicitor in Mannin, based on his instructions, was that the purchaser of the supermarket would be the plaintiff and that was the name in which the proceeding was commenced. The solicitor in Mannin had made no relevant mistake, whereas in AGC Industries, the Court held the opposite. In AGC Industries, the Court held that, on the evidence, there was never any other suggestion that any other party, other than the worker's employer, would be the proper party, and that was plain on the Practice Direction 6 letters, terms of the endorsement on the writ, and the email exchanges attempting to clarify the correct name. The Court held that, on the balance of probabilities, the applicant had established that the plaintiff's solicitor had intended to issue proceedings in the name of the worker's employer but had been mistaken as to the identity of that party.
• [25] In determining whether there was a mistake at the relevant time it is necessary to examine the statement of claim or writ.[17]
• [26] The Plaintiff's writ is generally endorsed with a claim and unfortunately suffers from the lack of detail and particulars in that regard. At paragraph 4, the endorsement states that the Second Plaintiff was the owner of the Land, located at 32 Kalymnos Drive, Karama.[18] The past tense is used. There is no express pleading that the Second Plaintiff is, or continues to be, the owner of the land. That must be assumed given the claim for loss and damage owed to the Second Plaintiff post-dates the discovery of the leaks (and presumably the damaged caused) from June 2023 onwards. Paragraphs 5 to 8 of the endorsement refers to the engagement of First Plaintiff and the Defendant in terms of the contracted works (which included the building of 60 two-bedroom units, 16 one-bedroom units across a 6 multi-story residential building including a ground level car park). Paragraph 9 of the endorsement refers to the issue date of the occupancy certificate and states "the units are known as Karama Central ('Units') and presently occupied by tenants". Paragraph 10 of the endorsement states the Defendant became aware of a series of water leaks in the "Units" and subsequently investigations determined that the pipes installed by the Defendant throughout the Units was not authorised or appropriate for the copper pipe required by the contract. Paragraph 11 of the endorsement describes the failure of the Defendant to supply materials that were good and suitable for use for life of the installation of the Kalymnos Apartments[19] and a failure to carry out the works with reasonable care and skill. Paragraph 12 of the endorsement pleads breaches of contract and consumer guarantees under s 54B of the Building Act 1993 (NT) by the Defendant. Paragraph 13 of the endorsement pleads that, as a result of the Defendant's actions, the First Plaintiff and Second Plaintiff suffered loss and damage. There are no particulars of loss and damage.
• [27] Unfortunately, due to the nature of the endorsement, it suffers from a generality which makes gleaning the relevant intention difficult. The situation is not like Mannin, where the loss and damage was particularised in a statement of claim as "loss of profit for the plaintiff being unable to operate the supermarket" which coupled with the instructions to the drafting solicitor was determinative.
• [28] Turning to an analysis of the evidence of the relevant solicitor in this matter and the issue of the intention to commence proceedings:

(a) Instructions in respect to the claim by the First Plaintiff were received on about 14 July 2024. There was no evidence as to what the substance of those instructions were.

(b) On or about 16 August 2024, the Second Plaintiff was added as a client "after it became clear that Joondanna, as the owner of the development, was paying for the costs of the rectification works caused by the pipe failures". There was no evidence as to the substance of any instructions to act on behalf of the Second Plaintiff or how precisely it was made clear that it was incurring rectification costs for damage being caused by the leaking pipes. It could be implied that Ms Cleveland was instructed that the Second Plaintiff was incurring costs as a result of having to make repairs to its building (as the owner of the affected residential units and/or possibly as the responsible landlord in respect to its tenants), was adversely affected by the leaking pipes, and presumably as a result would have a legal claim against the Defendant in respect to liability arising from the damage.

(c) Investigations were undertaken in respect to obtaining copies of the plans of the unit title schemes. It had not appeared to anyone, at that time, that another entity, the owner of the common property, the body corporate, may also have a claim.

(d) On or about 27 June 2024, the writ was drafted by another solicitor and settled by Ms Cleveland naming only the First Plaintiff and Second Plaintiff. A copy was sent to the client, Mr La Pira, who gave instructions to file it. There is no evidence as to those instructions. It is not clear if the lawyers were acting on express instructions from Mr La Pira to commence proceedings in the name of the First and Second Plaintiff, and that is what they did (as was the case in Mannin), or whether Mr La Pira went along with the suggestion or advice of his lawyers (as was the case in AGC). As there is no direct evidence in respect to the intention of Mr La Pira, for the purposes of this application, the relevant decision-maker, in terms of the intention to file the writ, is the Plaintiff's solicitor Ms Cleveland, not Mr La Pira.

• [29] On the basis of the evidence, and on the face of the writ, I am not satisfied on the balance of probabilities that the applicant has proved that it was Ms Cleveland's intention to issue proceedings in the name of the owner of the defective pipes which were causing damage. The endorsement on the writ does not describe the intended plaintiff sufficiently for me to be satisfied to the relevant standard. Further, it is open to find that on the evidence, the intention of the solicitor drafting the writ was focused on the party who was paying for the rectification works, namely the Second Plaintiff, not the owners of the defective pipes. The mistake was not one as to identity of the plaintiff. Nor was the mistake as to the legal remedy available to the plaintiff, in terms of the rightly intended identified plaintiff who did not have a remedy. In this case, the Second Plaintiff, on its case, has a legal remedy in respect to damage done to its property.[20] Here, the mistake could be described as an omission, in respect to fully appreciating that another entity may have a legal remedy available to it, in respect to additional damage caused to its property, additional to any damage caused to the Second Plaintiff, and at the relevant time, failing to consider that entity's remedy and to commence proceedings in its name as well. I accept that no one turned their mind to the fact that there existed another owner of the defective pipes and that other owner may have suffered damage, until at least after the writ was filed. I do not accept that it was the intention to sue on behalf of the Second Plaintiff and the body corporate, as owners of the pipes (or land). Rather, the proceedings were commenced to recover rectification damages incurred by the Second Plaintiff, and it was only after proceedings were commenced that was it discovered that another entity may have rights to recover as well. The Second Plaintiff's application in respect to Rule 36.01(4) therefore fails, as I am not satisfied that there was a mistake in the name of the party.

• [30] The Plaintiffs' application was put in the alternative, namely, if the amendment pursuant to Rule 36.01 did not apply, then application was made for joinder under Rule 9.06(b)(ii) for the body corporate to be added as the Third Plaintiff. Rule 9.06(b)(ii) provides:

At any stage of a proceeding the Court may order that:

(b) any of the following persons be added as a party:

(ii) a person between whom and a party to the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

• [31] The Plaintiffs submitted that the body corporate should be joined because, as between the body corporate and the Defendant, there is a question arising out of or related to the claim which it is just and convenient to determine as between the body corporate and defendant. It was submitted that if the body corporate was not made as a party, it might be argued that the losses related to areas within the body corporate's title were unrecoverable in these proceedings. That technical argument, it was submitted, may absorb unnecessary time and costs and, if successful, may mean that the body corporate would need to commence separate proceedings resulting in significant duplication in hearings. In contrast, it was submitted that, if joined, all issues relating to the damage to the pipes, wherever found and whatever damages caused, could be recovered in the one proceeding. Additionally, in all practicality, there would be no distinction between the rights enjoyed by the Second Plaintiff as the owner of the units and as the sole member of the body corporate the owner of the common property.
• [32] The Defendant did not readily oppose that the body corporate may fall within Rule 9.06(b)(ii). Both parties acknowledged that the widest beneficial interpretation of Rule 9.06 should be applied in the exercise of the Court's discretion. I am prepared to accept that the body corporate may well fall within Rule 9.06(b)(ii). However, the substantive issue between the parties was whether the discretion to join it should be exercised in light of the "limitation issues". For the purposes of this application, it is taken that the Defendant would raise a limitation defence.

Joinder of a party where the limitation period has expired

• [33] The issue was raised as to whether it was possible to join a party where the limitation period, in respect to that party, had already expired. The Defendant and Plaintiffs, in submissions, made reference to Civil Procedure Northern Territory and, in the context of an expired limitation period, the full passage in that publication which states:[21]

The grant or refusal of leave to alter the parties to a proceeding is at the discretion of the court. It was a settled rule of practice in the court immediately prior to the commencement of the new rules that leave would be refused once time had expired, and in the absence of anything in the rules to the contrary, that practice should continue. As such, it is the usual practice to refuse leave under r 9.06 to add or substitute a plaintiff once the limitation period applying to the claim against the defendant has expired: Creedon v Measey Investments Pty Ltd [1990] NTSC 15; (1990) 69 NTR 19 at 29-30; Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTSC 119. Likewise, the usual rule of practice is that a plaintiff will not be given leave under r 9.06 to add a defendant after the period of limitation applying to its claim against that defendant has already expired. This rule of practice is based on the concept that to allow such an addition would serve no useful purpose because the new defendant, as a party, would have the unanswerable defence of a time-bar. Rule 9.11(3)(a) reflects this basis for the rule of practice: Yamamori (Hong Kong) Ltd v Clark [1994] NTSC 111 at [66]; Creedon, above, at [52]-[54]. However, whilst joinder in such circumstances is routinely refused, this is a rule of practice only and it is not an immutable rule: Yamamori, above, at [66]; Gwalwa Daraniki Association Inc v Michael Chin [2017] NTSC 51 at [44].

• [34] A similar passage can be found in Creedon, citing Civil Procedure Victoria.[22] It would seem that the original rule of practice was founded on the "relation back" theory. That is, in respect to a party, for example a defendant who is joined, against whom the limitation period had since expired, would absolutely lose the limitation defence because the joinder would relate back to the date of the filing of the writ. That theory has given way to the "no useful purpose" theory as being the true basis for the rule of practice,[23] which is referred to in the passage in Williams cited in Creedon. In any event, the question regarding relating back has been overtaken by Rule 9.11(3)(a) in respect to adding a defendant, that is, the proceeding against a new defendant commences only on filing of the amended originating process. In respect to adding a plaintiff, where the limitation period has expired as between that plaintiff and defendant, as noted in the passage in Williams:[24]

There is no corresponding provision in the case of a change of plaintiff, but by analogy the court would treat the proceeding (so far as it relates to the new plaintiff) as having commenced on the day the originating process is amended in accordance with r 9.11(1).

• [35] As noted in Creedon, the rule of practice is not immutable. The question, for the purpose of this application, is in what circumstances (if any) would it be appropriate to depart from the rule of practice, noting the Court's overall discretion? Or more specifically, where a party also seeks an amendment of the endorsement for an extension under s 44 of the Limitation Act 1981 (NT), does such a circumstance justify a departure from the rule of practice and, if so, to what extent does the Court need to be satisfied as to the prospects of such amendment if allowed?
  • [36] There are at least two authorities of this Court touching on the issue which were not brought to my attention by Counsel, and which I had only discovered subsequently and were not the subject of submissions. In both instances, an interlocutory application for joinder was made concurrently with an application to extend time under s 44 of the Limitation Act 1981 (NT).[25]
  • [37] In Patten v Lend Lease Funds Management, an application was made to join a third party as a defendant after the limitation period had expired.[26] The application was made for the joinder of the third party under Rule 9.06 as well as an extension of the applicable limitation period pursuant to s 44(3) of the Limitation Act 1981 (NT). The Court held (my emphasis):[27]

An extension of time is required before the joinder of the Third Party as a Defendant can occur given the general rule that the addition of a defendant after the expiration of a limitation period is not allowed.

• [38] The "general rule" referred to was not elaborated on but presumably refers to the "usual rule of practice" (the no useful purpose rule). The Court's apparent reasoning being, the extension of the limitation period should be determined prior to an order to join a party, otherwise the joinder would fall foul of the general rule. In Patten, the Court proceeded on the basis that it was appropriate to first determine the limitation period extension application, which it did in favour of the applicant, before presumably granting the joinder.[28]
• [39] Similarly in Forster v Vin Keneally & Associates Pty Ltd, an application was made for an extension of the limitation period and for joinder on the basis of such an extension.[29] The Court considered whether the extension of time should be granted in all the circumstances and decided it should not, refusing the application for joinder.
• [40] The two cases above are authority for the principle that, according to the "general rule" a party will not be joined if the limitation period has expired, unless an application for an extension time is made concurrently with the joinder application. However, in those cases there was no dispute about whether it was possible to extend the limitation period under s 44 of the Limitation Act 1981 (NT). In this application, there is debate as to whether the limitation period in s 160 of the Building Act 1993 (NT) applies or not, and if does, whether it can be extended. If s 160 of the Building Act 1993 (NT) does not apply, then an extension of time may be required in any event, at least in respect to those "normal" limitation periods which may have expired as between the body corporate and Defendant.
• [41] The difficulty faced in this proceeding is that the Plaintiffs' amended summons does not seek an order under s 44 of the Limitation Act 1981 (NT).[30] The application to add the body corporate as a party seeks to do so under either under Rule 36.03 or by joinder under Rule 9.06, with an amendment to the endorsement seeking an extension of time if necessary. I have considered whether that is fatal to the application. I am of the view that the general rule, the "no useful purpose rule", given it is not immutable and given the discretion afforded to the Court under Rule 9.06[31], does not preclude the joinder of a party, where the limitation period has expired but an extension is sought. In the circumstances of this application, notwithstanding that there is no formal application under s 44 of the Limitation Act 1981 (NT), on the basis of the manner in which the application was argued, I am certainly sufficiently equipped to determine if the joinder application falls foul of the "no useful purpose rule".
• [42] In my opinion, if hand-in-hand with the joinder application, there is an application for the amendment of a pleading (or endorsement) which seeks an order for the extension of time, and the arguments put forward in respect to the proposed application for the extension of time have merit on their face, there would appear to be a useful purpose in allowing the joinder. If the joinder is granted, the Plaintiffs would still be required to seek the extension of time (or argue if one applies at all), and the Defendant would not be deprived of a limitation defence, subject to responding to the extension of time application.
• [43] That position is fortified to some degree, in my opinion, by the decision of Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[32] Although not specifically on point in respect to the joinder issue, and in respect to slightly different Western Australian legislation, the appeal concerned an application to amend the writ, to add additional causes of action, in circumstances where the limitation period had expired, in respect to those additional claims, even if the amendments took effect from the date of the filing of the writ (i.e. related back). The Defendant in such a case could invoke and rely on a limitation defence. The Court of Appeal discussed the factors weighing on the discretion in such circumstances, to allow an amendment adding causes of action out of time which were amenable to a limitation defence. Although there was no simultaneous application before the Court for an extension of time under the Limitation Act 2005 (WA), the Plaintiff had advised the Court that an application would be made for an extension of time if, and when, any limitation defence was pleaded to the amended statement of claim.[33] In Belgravia, the Court held (footnotes omitted):[34]

However, in a case in which a defendant indicates an intention to plead a limitation defence to a cause of action barred by statute at the time it is proposed to be added by amendment, the court will disallow the amendment if there is no doubt that such a defence would defeat the claim.

Generally speaking, however, limitation issues are best decided at trial, with the consequence that an amendment will only be disallowed on the basis of such a defence in the clearest case. Examples of the type of case in which the availability of a limitation defence will be sufficiently clear and uncontroversial as to justify disallowance of an amendment which would inevitably be defeated by such a defence are provided by the circumstances in Dye and Rossen. However, in all but cases of that character, the appropriate course is to allow the amendment (assuming there is no other valid objection to it), enabling the defendant to plead any limitation defence which can then be determined at trial.

The question which resolves this appeal is whether this is such a clear case, where the amendment sought should be disallowed on the basis that it is futile because there is a limitation defence that would inevitably succeed. That is why the foreshadowed application by the plaintiffs pursuant to s 38 of the Limitation Act is significant.

...the judge had then to ask whether this was one of those cases in which it was so clear that a foreshadowed limitation defence would succeed such that the amendment should be disallowed on the ground that it would be futile.

In this case the judge answered the first question affirmatively in relation to the amendment the subject of this appeal. Although there might be scope to challenge that conclusion, that is not the course the plaintiffs have taken. The outcome of this appeal therefore turns on the second question, which is the question of whether it is so clear that the limitation defence foreshadowed by the defendants will succeed that leave to amend should have been refused. Because of the possibility that the plaintiffs might succeed in an application made pursuant to s 38 of the Limitation Act and obtain an order which would overcome any pleaded limitation defence, in the circumstances of this case the judge should have concluded that this was not one of those cases in which a foreshadowed limitation defence would necessarily succeed, and allowed the amendment.

• [44] The next question then, in my opinion, is to what degree it is necessary to examine the prospects of any limitation argument, or extension thereof?
• [45] The limitation period here is said to apply via sections 159, 160 and 161 of the Building Act 1983 (NT).[35] Argument centred on whether those provisions applied at all and, if so, whether they were amenable to extension under s 44 of the Limitation Act 1981 (NT). The Plaintiffs submitted that I should be wary, in interlocutory matters, to determine limitation period disputes except in the clearest case. That is, I should not determine that the limitation period in the Building Act 1993 (NT) applies and refuse the joinder. The Plaintiffs argued that this was a matter in which it was less than clear that the limitation period would absolutely apply. The Plaintiffs referred to statements by the High Court in Wardley Australia v Western Australia:[36]

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question. Magman International illustrates the problems which can arise, particularly in a case involving foreign loans.

• [46] The Plaintiffs' submissions were based on two grounds: First, it was the Plaintiffs intention, if necessary, to rely on s 44 of the Limitation Act 1981 (NT) to seek an extension of time. This was based on the receipt of an expert report in respect to the pipes, and that it was far than clear that the long-stop provisions would not be capable of extension.[37] Secondly, it was argued that the damages sought by the Plaintiffs did not fall under the categories of damages sought in actions which are captured by the long-stop provisions.[38] It was submitted that, such matters were best considered at trial or at a later stage of the proceedings, when pleadings were closed and discovery complete.[39] It was submitted that, except in the clearest of cases, it was undesirable to attempt to determine questions of limitation other than in the context of a substantial trial. It was submitted by the Plaintiffs that, in respect to the present application, it was not necessary for the Court to do anything further other than to observe that the limitation issues were legitimately contestable such that any such application should be properly and thoroughly heard on its merits, and that this application was not the occasion for it.
• [47] In respect to Wardley, a number of things can be said. First, Wardley was a strike out case, not a joinder case. At first instance, French J struck out the offending amendment on the basis that it pleaded a cause of action that was outside the statutory time limit. In that case, French J held that the State had suffered the relevant loss at the moment it executed the relevant indemnity, the limitation period had commenced from then and had expired before the amendment. French J held that the assumption by the State of a risk of loss was a loss that it had suffered, which was sufficient to start the limitation period. The Full Court and High Court disagreed, holding that the relevant loss did not occur until the indemnity was actually called on. At the time of French J's decision, the law was unsettled in respect to the time at which loss was suffered in indemnity cases. Secondly, it was not a case about the applicability of an extension of time in circumstances where the limitation period had clearly expired. Wardley warns of the risks of attempting to resolve whether a limitation period had actually expired or not, in circumstances where not only was the law unsettled on point but where evidence was required to determine when the limitation period had actually commenced. In respect to this application, the warnings given in Wardley have general applicability. Here, the Court is being asked to determine whether the long-stop provisions of the Building Act 1993 (NT) apply to the damages sought and, if so, whether those provisions are capable of extension under s 44 of the Limitation Act 1981 (NT).[40] Alternatively, if the long stop provisions of the Building Act 1993 (NT) do not apply, extensions to the limitation periods in s 12(1) of the Limitation Act 1981 (NT) may also need to be sought. In my opinion, it is necessary to do more than recognise the issues are contestable.

• [48] As noted above, the limitation arguments were put on two grounds by the Plaintiffs. First, it was submitted that sections 159-160 of the Building Act 1993 (NT) did not apply to the damages sought by the Plaintiffs as they were not "damages for economic loss and rectification costs resulting from defective construction of building work" as provided by s 159(1) of the Building Act 1993 (NT). Secondly, that the limitation provided by s 160(1) of the Building Act 1993 (NT) was amenable to extension by s 44 of the Limitation Act 1981 (NT). The relevant provisions, namely ss 159-160 of the Building Act 1993 (NT) and s 44(1) of the Limitation Act 1981 (NT) are as follows:

Section 159 Application of limitation on taking action

(1) Section 160 applies to an action for damages for economic loss and rectification costs resulting from defective construction of building work or other work carried out under this Act.

(2) The cause of action may be founded on contract or tort (including a cause of action for damages for breach of a statutory duty) or be a cause of action to recover money recoverable by virtue of this Act.

(3) Section 160 does not affect a right to recover damages for death or personal injury resulting from defective construction.

Section 160 Limitation on time when action may be taken

(1) An action is not maintainable by a plaintiff or a person claiming on behalf of a plaintiff if it is brought after the end of a limitation period of 10 years after the date on which the cause of action first accrues.

(2) The cause of action accrues on the date of the grant of occupancy certification in relation to the building work that is the subject of the action or, if occupancy certification is not granted, on the date of first occupation of the building concerned after completion of the work.

(1) To the extent to which they are inconsistent with any other law in force in the Territory, the provisions of this Part prevail.

(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for:

(b) doing an act, or taking a step in an action; or

(c) doing an act or taking a step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.

Are the damages claimed outside the scope of those referred to in s 159 of the Building Act 1993 (NT)?

• [49] The Plaintiffs' current claim as against the Defendant proceeds in contract. The Plaintiffs seek to amend the pleading to include an additional action in tort. Thus, if joined as the Third Defendant, the body corporate's claims would similarly be in contract and tort with presumably no distinction in the claim with the Second Plaintiff, other than the damages suffered.
• [50] In respect to the claim in contract, the Plaintiffs allege breach of the Contract (being the Australian Standard General Conditions of Contract, AS4000-1997, as amended by Part B, clause 11(a), (b), (d) and (e)), referred to in paragraphs 7 and 11 of the endorsement of claim in the proposed second amended writ. Proposed paragraphs 11 and 12 of the claim provide:
  1. By determining to install the PB-1 Pipe, the First Defendant failed to:
     1. supply materials that would be good and suitable for the purpose for which they were to be used, being the life of the installation of the Kalymnos Apartments; and
     2. carry out the Works with reasonable care and skill; and
     3. ensure that the Works were completed in a proper and workmanlike manner and in accordance with the approved plans specified in the building permit for the work; and
     4. ensure that the Works would be carried out in accordance with the Building Act, the Building Regulations, the Building Code of Australia and all other laws in force in the Northern Territory.
  2. The matters pleaded at paragraph 11, constituted breaches of the Contract, and of the duties of care owed to the Plaintiffs by the First Defendant.
• [51] The First Plaintiff's claim in contract is said to arise by virtue of the building contract between it and the Defendant. The Second Defendant's claim is said to arise by virtue of either it being an undisclosed principal of the First Plaintiff, or in respect to any contract between the First and Second Plaintiff, which would give the Second Plaintiff the right to recover from the First Plaintiff and therefore the First Plaintiff the right to recover from the Defendant. The body corporate's claim, if joined as the Third Plaintiff, is said to arise from s 36 of the Unit Titles Schemes Act 2009 (NT), as it may exercise the rights of the original owner (i.e. the Second Plaintiff) under a contract entered into before the scheme was formed for work carried out in relation to the common property.[41]
• [52] In respect to the tort claim, the proposed amendment pleads that the First Defendant owed each of the Plaintiffs a duty to perform the contract with due care and to take reasonable care to ensure that its obligations under the contract were satisfied so as not to cause damage to their property (including to the PB-1 Pipes themselves) and/or to cause them financial loss.[42] The failures at proposed paragraph 11 were said to constitute beaches of duty of care by the Defendant to the Plaintiffs. The tort claim, as proposed and submitted, was put in the alternative to the contract claim.
• [53] The damages claimed by the Plaintiffs, as set out in clause 13 of the proposed endorsement of claim, are loss and damage suffered by the Plaintiffs as a result of the First Defendant's breach of contract and of its duty of care to the Plaintiffs.
• [54] It was submitted that that the Plaintiffs' claim is for damages for the supply of defective product, for the replacement of that defective product and for the property damage that has been caused. It was submitted that the Plaintiffs' case was about the supply of product, which was inherently defective, where that defect manifest itself to render the property defective (and entirely incapable of fulfilling its function, which was containing water), with the result that water was introduced onto the property by the pipes and caused damage. It was submitted that the damages were not easily characterised under s 159(1) of the Building Act 1993 (NT) as a claim for damages for economic loss and rectification costs. The claim for pure economic loss, it was submitted, was in the alternative.[43]
• [55] Section 159(1) of the Building Act 1993 (NT) refers to "an action for damages for economic loss and rectification costs resulting from defective construction of building work". Section 159(2) of the Building Act 1993 (NT) states "the cause of action may be founded on contract or tort". Thus, actions either in tort or contract which seek damages for economic loss and rectification costs resulting from defective construction of building work would be captured. In order to fall outside the limitation period imposed by the Building Act 1993 (NT), the damages which the Plaintiffs seek, either contract or tort, would need to be for something other than "economic loss and rectification costs" resulting from defective construction of building work. In respect to the meanings of the words in s 159(1) of the Building Act 1993 (NT): "Building work" and "construct" (and by extension construction) are defined in the Act. "Defective" and "Resulting" take their ordinary meaning.[44]
• [56] In respect to the phrase "economic loss and rectification costs", the two concepts are treated the same. In respect to the same phrase[45] in the South Australian legislation, O'Sullivan DCJ stated in Walford:[46]

The second, is that part of the section which reads 'no action for damages for economic loss or rectification costs.

This part of the provision identifies the relief sought.

The Act came into operation on 15 January 1994 at a time when there was some doubt as to whether the cost of rectifying defective building work was properly regarded as pure economic loss.

At least since Bryan v Maloney, which was decided in 1995, a claim for rectification costs in the absence of injury to persons or property is a claim for pure economic loss.

In any event, in this matter there is no dispute that the action brought by Walford against DesignInc claims damages for rectification costs.

• [57] A plaintiff can sue in contract for losses associated with damage to physical property. Similarly, a plaintiff can sue in tort for damages for damage to physical property, including consequential loss resulting from that damage. Such damages are not pure economic loss.
• [58] In Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[47] engineers were sued in negligence for the negligent design of a foundation of a building and the supervision in its construction. The High Court stated:[48]

The damage for which the appellant seeks a remedy in this case is the economic loss it alleges it has suffered as a result of buying a building which is defective. Circumstances can be imagined in which, had the defects not been discovered, some damage to person or property might have resulted from those defects. But that is not what has happened. The defects have been identified. Steps can be taken to prevent damage to person or property.

A view was adopted for a time in England that, because there was physical damage to the building, a claim of the kind made by the appellant was not solely for economic loss. That view was questioned in Sutherland Shire Council v Heyman and rejected in Bryan v Maloney. It was subsequently also rejected by the House of Lords in Murphy v Brentwood District Council. There is no reason now to reopen that debate and neither side in the present matter sought to do so. The damage which the appellant alleges it has suffered is pure economic loss.

• [59] As understood, the Plaintiffs' claim is not for the economic loss it has suffered as a result of buying a defective building, but rather, damage to the pipes and damage which has resulted as a consequence of the defect in the pipe products installed in the building. The question is whether, in such circumstances, there is any distinction between economic loss and losses from physical damage. The passage above in Woolcock was discussed in Makawe Pty Limited v Randwick City Council:[49]

The trial judge's conclusion that the damage claimed was pure economic loss was based virtually wholly on the extracted passage from Woolcock Street. That passage is:

"19. The damage for which the appellant seeks a remedy in this case is the economic loss it alleges it has suffered as a result of buying a building which is defective. Circumstances can be imagined in which, had the defects not been discovered, some damage to person or property might have resulted from those defects. But that is not what has happened. The defects have been identified. Steps can be taken to prevent damage to person or property.

20. A view was adopted for a time in England ... that, because there was physical damage to the building, a claim of the kind made by the appellant was not solely for economic loss. That view was questioned in Sutherland Shire Council v Heyman [[1985] HCA 41; [1985] HCA 41; (1985) 157 CLR 424] and rejected in Bryan v Maloney. It was subsequently also rejected by the House of Lords in Murphy v Brentwood District Council [[1991] 1 AC 398]. There is no reason now to reopen that debate and neither side in the present matter sought to do so. The damage which the appellant alleges it has suffered is pure economic loss". (italics in original; emphasis by bold added)

The reference in [19] to potential damage to person or property, and to the identification of the defect and the prospect of rectification before such damage occurred, taken alone, might be seen to leave open the possibility that, once damage to property had actually occurred (as distinct from the potentiality of damage), then the damage claimed can be transformed from pure economic loss to actual property damage. Any such notion is put to rest by what follows in [20] and also by the judgment in Bryan v Maloney.

In Bryan v Maloney, a house had been built with inadequate footings. The damage that ensued included cracks in the walls - that is, real physical damage. Nevertheless, it was held to be "mere economic loss" (p 617) because it was distinct from, and not consequent upon, ordinary physical injury to person or property.

An attempt was made, in the written submissions, to distinguish the present case from Bryan v Maloney. It was said that the damage in Bryan v Maloney was due to a defect in the structure of the house; but that, in the present case, the structure itself was not inherently defective. It was argued that Bryan v Maloney does not deal with every case of physical damage to a building where the damage does not arise from structural defects inherent in the building.

I would reject this attempt. I see no relevant distinction in the defect here shown (the effect of inundation by water including the deposit of stain - causing sediment), and the subsequent property damage, and the defect (inadequate footings) and the actual damage (cracking) in Bryan v Maloney.

Reliance was also placed upon a decision of this Court (Sutherland Shire Council v Becker [2006] NSWCA 344; (2006) 150 LGERA 184) as one distinguishing Bryan v Maloney, and treating the claim there made as one for property damage as distinct from pure economic loss. Attention needs to be paid to only one paragraph of the judgment of Bryson JA to reject that submission. His Honour said:

"70. The nature of the loss which the respondent alleges was in my opinion plainly damage to property: the fill deposited on Lot 7 lost lateral support and slipped away, carrying with it vegetation and trees which formed much of the backyard, and causing the fracture of a water pipe which appears to have carried water to a garden tap ... The claim cannot be seen as a claim for economic loss in the sense in which structural stress to the warehouse and office complex in Woolcock Street ... was said to be economic loss: the loss claimed went beyond diminution in value of an improvement. The respondent's case requires the deposit of fill in Lot 7 to be considered as in some way a fixture, an improvement or a structure on her land, and the risks to which it was exposed which are to be considered in relation to the existence of a duty of care are risks to its stability created by the manner in which the appellant dealt with the subdivision application".

In no possible way can Becker be seen as providing an analogy to the damage claimed in the present case.

In the light of the passage from Woolcock Street which I have extracted above, I see no error in the conclusion that the damage here claimed was pure economic loss.

• [60] In the light of the above, it would seem that any argument that damage to the pipes and damages caused by the leaking pipes, as opposed to a defect in a building's foundations causing physical damage to the building, may not be different in terms of economic loss. In Makawe, the Appellant challenged a finding that the damage claimed was pure economic loss. The damage comprised flooding in a car park, deposit of muddy sediment, damage to pumps (and clean outs of pumps) and brown stains on the floor and walls of the car park. In my opinion, an argument that the damages claim, in these circumstances, comprises something other than economic loss may prove difficult. However, having said that I acknowledge the claim only consists, at this time, as a general endorsement on the writ, with a statement of claim and particulars to come. Further, there is yet to be discovery and evidence filed, and it may be that the Plaintiff is capable of clarifying its claim further, in particular, through the particulars of damages. On that basis it would be premature to disregard this aspect of the Plaintiffs' argument that the limitation period in the Building Act 1993 (NT) did not apply to the causes of actions brought and that any joinder served no useful purpose.

Is the Limitation Period in the Building Act 1993 (NT) amenable to s 44 of the Limitation Act 1981 (NT)?

• [61] The Plaintiffs argued that the limitation in s 160(1) Building Act 1993 (NT), if it applied, was capable of extension by s 44 of the Limitation Act 1981 (NT).
• [62] I substantially agree with the Defendant's submissions that the relevant provisions of the Building Act 1993 (NT) have a clear purpose and are directed to the open-ended outcome arising from applying existing limitation periods concerning claims for latent defects, which only give rise to actional damage upon first becoming manifest. The provisions promote finality in building litigation by addressing the difficulties arising from latent defects, and different limitation commencement times for claims in tort and contract. There are similar schemes in other jurisdictions, and various Court decisions concerning the operation those schemes.[50]
• [63] The Plaintiffs submitted that there was nothing in s 44 of the Limitation Act 1981 (NT) which rendered it inconsistent, for the purpose of s 161 Building Act 1993 (NT), in respect to allowing the extension of the limitation period provided by s 160 Building Act 1993 (NT). It was submitted that a provision which sought to set a different limitation period than ten years would be inconsistent, but not a provision which sought to allow the extension of one. The Plaintiffs submitted that s 44(1) of the Limitation Act 1981 (NT) provides that where "this or any other Act... prescribes or limited time for (a) instituting an action... a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, at it thinks fit". The Plaintiffs submitted that, had the legislature intended to exclude the limitation period in s 160 of the Building Act 1993 (NT) from s 44 of the Limitation Act 1981 (NT), it could have easily done so by clear words. For example, s 159 of the Planning, Development and Infrastructure Act 2016 (SA) provides:[51]

159 Limitation on time when action may be taken

(1) Despite the Limitation of Actions Act 1936, or any other Act or law, no action for damages for economic loss or rectification costs resulting from defective building work (including an action for damages for breach of statutory duty) can be commenced more than 10 years after completion of the building work.

(2) This section does not affect an action to recover damages for death or personal injury resulting from defective building work.

(3) The period prescribed by subsection (1) cannot be extended.

• [64] In Walford, the Court found that the predecessor in the same terms to s 159 of the Planning, Development and Infrastructure Act 2016 (SA), namely s 73(1) of the Development Act 1993 (SA), could not be extended by s 48 of the Limitation of Actions Act 1936 (SA). The Court relied on the provisions which provided "despite the Limitation of Actions Act 1936..." and "the period prescribed by subsection (1) cannot be extended". Additionally similar express provisions are included in s 134(1) of the Building Act 1993 (Vic).[52]
• [65] In support of the applicability of s 44 of the Limitation Act 1981 (NT), the Plaintiffs relied on statements by the Full Court in Johnson v Northern Territory of Australia.[53] In Johnson, a question of law was referred to the Full Court pursuant to s 21 of the Supreme Court Act 1979 (NT), which was whether the two month limitation period in s 162(1) of the Police Administration Act 1978 (NT) could be extended by s 44(1) of the Limitation Act 1981 (NT). That was despite s 162(1) of the Police Administration Act 1978 (NT) stating that an action must be commended within two months after the act or omissions complained of was committed, and not otherwise. The Court held (citations omitted):[54]

Section 44 of the Limitation Act provides the power to extend a time limitation prescribed in "this or any other Act". In Verschuuren v Tom's Tyres Corporation Ltd the Court of Appeal held that the "broadly expressed power should only be confined within narrow limits if there is a plain and unambiguous provision elsewhere in the Act which require this to be done". The section will have application where an Act prescribes a limitation period but says nothing about an extension of time. It will apply to legislative time limits unless there is, in the particular piece of legislation, an expression of intent on the part of the legislature to the contrary. In this legislation, there is no such expression of intent.

As the plaintiff submitted, it would have been a simple matter for the legislature to have expressed an intention to exclude s 44(1) of the Limitation Act as it did, for example, in relation to defamation actions in s 44(3)(aa) of the Act.

The purpose of provisions such as s 44(1) of the Limitation Act is the beneficial object of eliminating "the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". If the interpretation suggested by the defendant is accepted, the capacity for the limitation period to cause grave injustice is readily apparent. It is most unlikely that the legislature intended to create such a tight timeframe with no capacity for such grave injustices to be remedied. No reason for adopting such an approach was suggested by the defendant. Had that been the intention of the legislature, we would have expected some explanation to have been provided. The second reading speech is silent on the topic. We would also have expected the use of clear language in either s 162 of the Police Administration Act or s 44 of the Limitation Act to that effect.

The limitation of action provided by s 162 of the Police Administration Act creates a bar to the remedy rather than extinguishing the right of action. In our opinion s 44(1) of the Limitation Act has application to this provision.

• [66] It was noted in Johnson that, had the legislature intended s 44(1) of the Limitation Act 1981 (NT) be excluded, it could have done so. However, Johnson dealt with a very small limitation period of two months with no explanation proffered by the Defendant as to why. In these circumstances, the limitation period is ten years from the issue of the occupancy certificate. As evinced by various authorities dealing with similar provisions interstate, there clearly was a policy consideration behind imposition of such a limitation period. Conversely, both the Building Act 1993 (NT) and Development Act 1993 (SA) were enacted at approximately the same time, following an attempt in the 1990's to adopt nationally consistent approach to the regulation of building work.[55] As stated in Bert Farina:[56]

However, there is no uniformity in the legislative provisions through which this time limit has been introduced. Indeed, they are each expressed quite differently. Whilst some of these provisions (for example, in New South Wales and the Australian Capital Territory) make it plain they are intended merely as long stop provisions, others are less clear and at least leave open a construction which would have them operating to the exclusion of shorter limitation periods where they overlap in their operation.

• [67] It is therefore arguable that the legislature had intended to distinguish the Northern Territory provision from others.
• [68] Determination as to whether s 44 of the Limitation Act 1981 (NT) is capable of extending the limitation period in s 160 of the Building Act 1983 (NT) is not without some difficulty.[57] I note the question in Johnson was referred to the Full Court to resolve. In this application, I mindful that the substantive application is for a joinder of a party and relevant amendments. In my opinion, the issue as to whether the Limitation Act 1981 (NT) extension provision applies has merit on its face and the argument should properly be dealt with by way of specific application for an extension, either at a substantive interlocutory hearing or separate hearing before the trial judge.
• [69] On the basis of the above, it cannot be said that there is "no useful purpose" in allowing joinder of the third plaintiff, subject to an application for an extension of time also being made in respect to claims by the proposed third plaintiff against the Defendant/s. I would therefore allow the joinder under Rule 9.06 for the reasons above.
• [70] Additionally, in terms of the prospects of any actual application to extend the limitation period, it was submitted that the Plaintiffs would be relying on, amongst other things, the matters and opinions in a report received from Dr Scheirs,[58] and the investigations which happened thereafter, as material facts for the purpose of seeking that extension. It would seem that the Plaintiffs are prepared to argue the substantive limitation point on the basis of the existence of relevant material facts. In my view, the determination of the prospects of any application for extension of the limitation period will depend on the resolution of the matters referred to above. Namely, whether s 160 of the Building Act 1993 (NT) applies, whether s 160 can be extended, and/or whether the limitation periods in the Limitation Act 1981 (NT) apply and whether they can be extended (i.e. if limitation periods have been reached). It would not be appropriate to attempt to determine the prospects of success of such a specific extension application in the circumstances without those preliminary issues being resolved.[59]

Is the claim a consumer guarantee dispute which ousts the jurisdiction of the Court?

• [71] An additional point was raised by the Defendant in written submissions. That concerned the proposed amendment and whether, in respect to the proposed claims by the body corporate, the claims fell within the exclusive jurisdiction of the Commissioner of Residential Building Disputes (the Commissioner). The Defendant submitted that the Plaintiffs' claim against it was a "consumer guarantee dispute" which placed exclusive jurisdiction in the Commissioner (and the Northern Territory Civil and Administrative Tribunal) to determine, and which ousted the jurisdiction of the Courts.[60] Further, to the extent that the body corporate had the benefit of consumer guarantees in the Building Act 1993 (NT), those guarantees only had effect for one year (for non-structural defects) and six years (for structural defects) after the completion of construction works. As a result, it was submitted that not only did the Court not have jurisdiction to hear the dispute, but the proposed claim was statute barred. It was submitted that the body corporate's claims were a "consumer guarantee dispute", the body corporate was the "current owner" concerning the common property and the Defendant fit the definition of a residential builder, who had carried out prescribed residential building work, as defined in the Building Act 1993 (NT).
• [72] Reliance was placed on J Anderson Constructions.[61] In that case, there was no privity of contract between the Plaintiff and First Defendant. Consequently, the Plaintiff sought to bring itself within Part 5A of the Building Act 1993 (NT) and its pleaded case arose out of the First Defendant's breach of consumer guarantees in s 54B of the Building Act 1993 (NT). The Plaintiff argued that its claims were in respect to "consumer guarantees" but not in respect to a "consumer guarantee dispute". Luppino AsJ held that, in respect to the Plaintiff's claim and in the circumstances, the Legislative Assembly had intended exclusive jurisdiction to vest in the Commissioner or the Northern Territory Civil and Administrative Tribunal, and not the Courts. In my opinion, J Anderson Constructions can be distinguished in the present case. Notwithstanding that the original endorsement on the writ refers to "consumer guarantees under s 54B of the Building Act 1993 (NT)",[62] the present application seeks, by amendment, to remove all reference to consumer guarantees. The claim, on the proposed amendment, pleads breach of contract and breach of a duty of care. Given the proposed amendments seek to remove any reference to consumer guarantees, the Plaintiffs are now not proposing to seek to invoke the remedy or enforcement processes relating to consumer guarantees, and the issue as to ouster of the Court's jurisdiction does not arise.

• [73] Pursuant to Rule 9.06, the Plaintiffs also seek to join Buteline as the Second Defendant. This part of the application is made ex parte, as is practice. Buteline has not been served with the amended summons and could apply to have the joinder set aside, if ordered.
• [74] The application is made under Rule 9.06 and s 9 of the Trans-Tasman Proceedings Act 2010 (Cth), which permits service of the amended writ in New Zealand. The operation of the Trans-Tasman Proceedings Act 2010 (Cth) was recently discussed by the High Court in Zurich Insurance Company Ltd v Koper which stated:[63]

The Trans-Tasman Proceedings Act 2010 (Cth) ("the Trans-Tasman Proceedings Act") is designed to streamline the process for resolving civil proceedings with trans-Tasman elements and to implement in Australian law the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement ("the Trans-Tasman Agreement").

Article 4 of the Trans-Tasman Agreement provides, amongst other things, that "[i]nitiating process in civil proceedings in a court within the territory of one Party may be served, without leave of a court, in the territory of the other Party" and that "[s]ervice rendered in accordance with this Article shall have the same effect as if it had occurred in the jurisdiction of the court in which the initiating process was issued". The Trans-Tasman Agreement defines "court within the territory of a Party", for Australia, to include any court of a State.

Part 2 of the Trans-Tasman Proceedings Act, which is headed "Service in New Zealand of initiating documents issued by Australian courts and tribunals", is specifically designed to implement Art 4 of the Trans-Tasman Agreement in Australian law. Within the meaning of the Act, an "Australian court" includes a court of a State and an "initiating document" in relation to an Australian court is a document by which a civil proceeding is commenced in that court or by reference to which a person becomes a party to a civil proceeding in that court.

Key provisions within Pt 2 are ss 9 and 10. Subject to limited exceptions, s 9(1) permits an initiating document issued by an Australian court that relates to a civil proceeding in that court to be served under the Part in New Zealand, without need for the court to give leave for that service and without need for the court to be satisfied that there is a connection between the proceeding and Australia. Section 9(2) qualifies the permission granted under s 9(1) by requiring the initiating document to be served in New Zealand in the same way that the initiating document is required or permitted to be served in the place of issue under the procedural rules of the Australian court. Section 10 provides that service of an initiating document in New Zealand under s 9 has the same effect, and gives rise to the same proceeding, as if the initiating document had been served in the place of issue.

• [75] Generally, in respect to the service of an originating processes outside Australia, Rules 7.01 and 7.02 apply. Rule 7.01 sets out a number of provisions which, in general, require a connection with the Northern Territory. Rule 7.02 provides for leave to be granted if the Court has jurisdiction, the proceeding is of a type mentioned in Rule 7.01 and the person seeking leave has a prima facie case for the relief claimed by them in the proceeding. However, the note to s 9 of the Trans-Tasman Proceedings Act 2010 (Cth), and as noted by the High Court above, provides that it is not necessary for the Court to give leave for service or to be satisfied that there is a connection between the proceeding and Australia. Therefore, in my opinion, Rules 7.01 and 7.02 do not apply in these circumstances, and they yield to the provisions of the Trans-Tasman Proceedings Act 2010 (Cth). Nevertheless, the discretion under Rule 9.06 to join Buteline must be exercised.
• [76] The evidence and the Plaintiffs' claim in respect to Buteline can be summarised as follows:[64]

(a) Buteline designed, engineered, manufactured and supplied a product called "Buteline Polybutylene-1" potable water pipe (pipe) to Australian consumers.

(b) Buteline provided an express warranty in respect of the pipe through its Australian subsidiary (which no longer conducts business in Australia).

(c) The Defendant purchased, and through its plumbing contractor, installed the pipe in the relevant building.

(d) In June 2023 the Defendant became aware of leaks in the building and subsequent investigations have determined that the pipes throughout are deteriorating and failing, causing water ingress and damage to the building. The failure of the pipes is likely due to chlorine attack caused by oxidative degradation which is systemic throughout the building.

(e) The claims against the proposed Second Defendant include:

(i) a breach of duty to take reasonable care to ensure the pipe, it had designed, engineered, manufactured and exported to Australia, was suitable for that use and fit for purpose, including residential properties in Darwin, so as not to cause damage to their property;

(ii) misleading and deceptive conduct in contravention of s 18 of the ACL in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(iii) breach of the guarantee that the pipe would be of actable quality in contravention of s 54(1) of the ACL;

(iv) breach of the guarantee contained in the express/statutory warranty in contravention of s 59(1) of the ACL;

(f) Damages in negligence and compensation pursuant to s 236 of the ACL are sought.

(g) As the actual loss was suffered in June 2023, when the pipes leaked, the cause of action did not accrue until then and consequently the Plaintiffs are within the six-year limitation period. Additionally, if any limitation period has expired, an extension is similarly sought under s 44 of the Limitation Act 1981 (NT).

• [77] The Plaintiffs submitted that, if Buteline is not joined, then they would be deprived of seeking relief in this proceeding and the Court would be deprived of ensuring that the real issues in controversy between the relevant parties are determined. If not joined, a separate and arguably unnecessary proceeding would likely be commenced. The application to join Buteline was not opposed by the Defendant.
• [78] In the exercise of the discretion under Rule 9.06, in my opinion, the determination of the claims as between the Plaintiffs and Buteline make it just and convenient to be determined in this proceeding. Buteline is therefore to be joined as the Second Defendant.

• [79] Apart from joinder of the body corporate and Buteline, the Plaintiffs' application also seeks to make various other amendments to the general endorsement. In respect to the joinder of the body corporate, as the Third Plaintiff, and Buteline, as the Second Defendant, amendments to the endorsement flow as a result of leave being granted to join those parties in accordance with their respective applications.
• [80] The Plaintiffs seek to additionally amend the endorsement by adding a claim in tort, additional to the claim in contract, seeking an extension of time under s 44 of the Limitation Act 1981 (NT), and adding particulars of the Defendants' breach of contract and duty of care.
• [81] The Plaintiffs submitted that leave was not required for these amendments pursuant to Rule 36.03(1), which provides that a party may amend a pleading once before the close of pleadings (without leave or consent of the other party). In this proceeding, pleadings have not closed and no other amendments have been previously made. A pleading is defined in the Rules to include an "endorsement of claim on a writ which constitutes a statement of claim".[65] Rule 36.03 refers to amendments to "pleadings". In contrast, Rule 36.01 refers to the amendment of a "document in the proceeding", defined as including an originating process, an endorsement of claim on an originating process and a pleading. A distinction in Rule 36.01 is drawn between an endorsement of claim on an originating process and a pleading (which includes endorsement of claim on a writ which constitutes a statement of claim). An endorsement of a clam on a writ (not constituting a statement of claim) is not a pleading and therefore cannot be amended by Rule 36.03. Any amendment must therefore be made via Rule 36.01, by Court order (which presumably can be made by consent) or by granting leave.
• [82] I am of the opinion that leave should be granted to amend under the broad discretion afforded by the Rules. In respect to the amendment relating to adding a claim in tort, in so far as that claim may be out of time, if allowed, the amendment will relate back to the start of the proceeding. In that respect, the rule in Weldon v Neal[66] is abrogated by s 48A of the Limitation Act 1981 (NT), and Rule 36.01(6), where the amendment may be allowed if the Court is satisfied that no party is prejudiced, or at least where such prejudice could not be fairly met by an adjournment and award of costs or otherwise. The loss of a limitation defence is not prejudice in the conduct of the defence within the meaning of Rule 36.01(6).[67] These proceedings are at a very early stage, the claim in tort is secondary to the claim in contract and both are based on the same factual foundations. There is no prejudice which the Defendant would suffer by allowing the amendments.

• [83] In respect to the issue of costs, I note that, although the practice in interlocutory matters, in accordance with Rule 63.18, is for costs to be ordered as costs in the proceeding, Rule 63.11 provides that a party who amends a pleading (with or without leave) shall pay the costs of and occasioned by the amendment and the costs thrown away because of the amendment. As discussed above, the endorsement is not a pleading and so I doubt that Rule 63.11 strictly applies. However, I see no reason, in the exercise of the Court's general discretion to order costs, why a similar order should not be made, including that the amending party should also pay the costs of the application to amend. That is, the Defendant should have its costs of this application to amend and otherwise as occasioned by the amendment, and the costs thrown away because of the amendment.[68] Should the Plaintiffs wish to make any submissions (or file evidence) to the contrary, I will grant 21 days to file any relevant materials, with the Defendant 14 days to respond, and costs will be reserved to be dealt with on the papers. In the absence of any filed material within 21 days, the Defendant shall have its costs as outlined above. Additionally, this application raised a number of complex legal issues which were appropriate for senior counsel and junior counsel and is therefore certified fit for senior and junior counsel pursuant to Rule 63.72(9).

• [84] I therefore make the following orders in accordance with the amended summons filed 20 March 2025, annexing the proposed second amended writ:
  1. Body Corporate for 30-38 Kalymnos Drive Karama Unit Title Scheme (BC 2014/051) is joined as the Third Plaintiff to this proceeding.
  2. Buteline NZ Limited (New Zealand company number 611728 and business number 9429038766220) is joined as the Second Defendant to this proceeding.
  3. The Writ filed on 5 July 2024 in this proceeding is amended in accordance with the second amended writ which is annexure LJW-5 to the affidavit of Lecia Jade Wood made 14 May 2025. The Plaintiffs are to file and serve an amended writ within 7 days of these reasons.
  4. The Plaintiffs are to file and serve a Statement of Claim within 7 days of these reasons.
  5. The Defendants are to be file and serve a Defence within 14 days of service of the Statement of Claim.
  6. The orders dated 22 November 2024 are vacated.
  7. The First and Second Plaintiffs may file and serve, within 21 days of the date of these reasons, any written material regarding costs (submissions or evidence), and the First Defendant may file and serve any written material in reply within 14 days after service, following which costs will be reserved to be dealt with on the papers. If no material is filed within 21 days, the First and Second Plaintiffs shall pay the First Defendant's costs of and occasioned by the amendment, the costs thrown away because of the amendment and the costs of this application. The application is certified fit for senior and junior counsel.
  8. Liberty to apply.

[1] Affidavit of Bernadette Raumteen made 30 January 2025 ('Raumteen Affidavit'), Annexure BR-7.

[2] The pipes being fixtures and therefore part of the land.

[3] Wickham Point Pty Ltd v Commonwealth of Australia [2018] NTSC 7 at [3] ('Wickham Point').

[4] Bridge Shipping Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 at 260-261 ('Bridge Shipping').

[5] See AGC Industries Pty Ltd v The Trustee for Trepang Services Unit Trust & Anor [2022] NTSC 30 at [10] ('AGC Industries').

[7] Smart v Stuart (1992) 2 NTLR 19 at 3.

[9] Owners of the Szardinia Sulcis v Owners of the Al Tawwab [1991] 1 Lloyd's Rep 201 ('Al Tawwab').

[10] Bridge Shipping at p 262 citing Lloyd LJ.

[11] Tomsimmat & Associates Pty Ltd v G & R Investments Pty Ltd (1993) 25 1PR 545 at 551 per Bryson J.

[12] Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTSC 119 ('Mannin').

[13] Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd [1996] NTSC 60; (1996) 133 FLR 347 at 252, by Mildren J ('Dee Jay Engineering').

[15] On appeal from the refusal to allow the amendment.

[18] It is not clear why only 32 Kalymnos Drive is referred to, the lots, prior to the consolidation of lots into one Lot 7073 and registration of the unit title scheme the blocks of land were Lots 6751 to 6756 known as 1 Manunda Terrace, 30, 32, 34, 36 and 38 Kalymnos Drive Karama. The proposed amendment the subject of this application seeks to clarify that ownership and the ownership of the units as between the Second Plaintiff and the body corporate.

[19] Presumably the Units as defined.

[20] Unlike Mannin, where there was an intention to commence in the name of the plaintiff, it was just that that plaintiff had no remedy against the defendant.

[21] M Grant, Civil Procedure Northern Territory at paragraph 5.9.515.

[22] Creedon v Measey Investments Pty Ltd [1990] NTSC 15 ('Creedon') at p 29.

[23] See Ketteman v Hansel Properties Ltd [1988] 1 All ER 38 at p 47.

[24] Cited in Creedon [1990] NTSC 15; (1990) 69 NTR 19 at p 29.

[25] An application for an extension of time is an interlocutory application.

[26] Patten v Lend Lease Funds Management [2010] NTSC 51 ('Patten').

[28] It is not apparent on the face of the Court's reasons, which simply states the extension be granted and orders made accordingly.

[29] Forster v Vin Keneally & Associates Pty Ltd [1987] NTSC 50; (1987) 48 NTR 51.

[30] On either argument advanced by the Plaintiffs they will need to rely on s 44 of the Limitation Act 1981 (NT), either to extend the limitation period in the Building Act 1993 (NT) or the limitation periods for contract and tort (if expired) in the Limitation Act 1981 (NT). See Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 at 105.

[31] And Rule 1.10 which requires the Court exercising powers to ensure all questions in the proceeding are resolved justly, promptly, economically and in proportion to the nature of the dispute.

[32] [2017] WASCA 127 ('Belgravia')

[33] Noting a statutory limitation bars the remedy rather than right, must be pleaded to be invoked, and can be waived.

[34] Belgravia at 46-47 and 54-55.

[35] Referred to herein as "long stop" provisions.

[36] Wardley Australia v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533 ('Wardley').

[37] This aspect assumes the long stop provisions applied, had expired but could be extended.

[38] This aspect assumed that the limitation period in the Building Act 1983 (NT) did not apply at all.

[39] See also AGC Industries at [37].

[40] See also Northern Territory of Australia v Bellamack Pty Ltd [2024] NTSC 66 at [52].

[41] As set out in proposed paragraph 12A of the endorsement of claim.

[42] As set out in proposed paragraph 7A of the endorsement of claim.

[43] Presumably the claim for pure economic loss is made by reference to "financial loss" in clause 7A of the claim. If there is such a claim, then it will presumably be caught by the Building Act 1983 (NT).

[44] See Walford Anglican School for Girls Incorporated v Romaldi Constructions Pty Ltd & Anor [2020] SADC 146 at [90-93] ('Walford').

[45] Although "or" is used between economic loss and rectification costs.

[47] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 ('Woolcock').

[49] Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 [124-129].

[50] Owners Corporation Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140; Walford; Duncan & Anor v Bert Farina Constructions Pty Ltd [2023] SADC 37; Woolcock at [103-105] per McHugh J.

[51] A similar provision existed in its predecessor s 73 of the Development Act 1993 (SA).

[52] Which provides "Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law".

[53] Johnson v Northern Territory of Australia [2014] NTSC 18 ('Johnson').

[55] Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67 at [108] ('Bert Farina').

[57] In P Handford's Limitation of Actions - Laws of Australia (3rd Ed, 2011) at p 126 in discussion of the applicability of Limitation Act extension provisions, the author notes that "In South Australia this provision no longer applies to actions in respect of defective building work. The 10-year limitation period applies to such actions". The footnote provides "There is no equivalent exclusion in the Building Act 1993 (NT)".

[58] Affidavit of Jamie Elkins made on 21 August 2024, Annexure JRE-2.

[59] For example, if extension of time sought in respect to the limitation period in the Building Act 1993 (NT) then s 44(1) of the Limitation Act 1981 (NT) would apply. If an extension of time was sought in respect to the limitation period provided in s 12(1) of the Limitation Act 1981 (NT) then s 44(3) of the Limitation Act 1981 (NT) would additionally apply, because any application sought to extend a limitation period sought by "this Act". See Johnson v Northern Territory of Australia [2016] NTSC 49 at [339].

[60] Citing Phillis v J Anderson Constructions Pty Ltd & Ors; Stephan & Anor v J Anderson Constructions Pty Ltd & Ors [2020] NTSC 70 ('J Anderson Constructions').

[61] [2020] NTSC 70.

[62] Clause 12 of the original endorsement annexed to the Writ dated 5 July 2024.

[63] Zurich Insurance Company Ltd v Koper [2023] HCA 25.

[64] Affidavit of Jamie Elkins made 13 March 2025 at [14] and the proposed Second Amended Writ.

[65] Rule 1.09 ""pleading" includes an endorsement of claim on a writ which constitutes a statement of claim and includes particulars of a pleading.

[66] [1887] UKLawRpKQB 161; (1887) 19 QBD 394.

[67] See AGC Industries at [38].

[68] Noting that no statement of claim or defence has yet been filed and therefore any costs thrown away should be negligible.