(c) excluded personal injury claims.
18 As the defendant has contended it would seem to have been a simple matter for the legislature to include in section 3B actions such as the type made by the plaintiff thereby taking them outside the operation of the Act. It chose not to do so.
19 The proportionate liability provisions of the CLA commenced on 1 December 2004. The HBA was amended in 2004, yet the legislature did not see fit to exclude proportionate liability in respect to statutory warranties. The date of assent was 15 December 2004 and the commencement dates ranged from 29 April 2005 to 1 September 2006.
20 Although there is no direct authority on the issue a similar matter came before McDougall J in The Owners Strata Plan v Brookfield Multiplex Limited [2010] NSWSC 360. In that case his Honour dealt with a defence in response to a relevantly identical claim by an Owners Corporation. His Honour granted the defendant builder leave to amend its list response to plead that its various subcontractors were concurrent wrongdoers pursuant to the CLA. In doing so, McDougall J found the amendments were not hopeless or doomed to fail. I accept the defendant's submission that McDougall J's decision in Multiplex implicitly supports its contention that the CLA applies to the plaintiff's cause of action. The plaintiff replied that McDougall J had not considered s 39, and his decision was confined to a matter of pleading. However, ultimately McDougall J's judgment assumes that it is possible to successfully plead the relevant sections of the CLA in relation to a breach of the statutory warranties in question. Whilst it may not be determinative, it is relevant that the plaintiff's submission is directly contrary to an underlying premise of McDougall's decision in Multiplex. Although in Multiplex the plaintiff sued in negligence as well as relying on the section 18D of the HBA, the plaintiff here cannot avoid the operation of the CLA by pleading its case in a limited way if the underlying fact support both causes of action [Jones v Mortgages Acceptance Nominees Ltd (1996) 142 ALR 561 at 562-563].
21 Section 39(c) of the CLA does not assist the plaintiff. The HBA does not impose liabilities. It implies warranties in certain contracts and gives certain non-contracting parties the benefit of those warranties.
22 As the defendant contended, s 18B and 18D can be contrasted with provisions that in fact impose statutory liability, such as s 42 and s 68 of the Fair Trading Act 1987. Section 42 prohibits certain conduct and s 68 imposes several liability in relation to a breach of s 42. Section 34(1)(b) of the CLA then provides that Part 4 applies to actions for damages under the Fair Trading Act for a contravention of s 42, thus imposing proportionate liability where otherwise several liability for breach of that statutory duty would arise.
23 It is trite that the Court must apply the words of the drafter in their ordinary and natural meaning and by reference to intention in the second reading speeches. The plaintiff did not point to any such ancillary material here to assist its case. I accept that the ordinary and natural meaning of s 34 means that proportionate liability applies.
24 Further and as the defendant has contended the decision in Buck v Comcare (1996) 137 ALR 335 does not appear to assist the plaintiff since there is no ambiguity, with nothing in the words used in section 18B or 18D that imposes any liability.
25 The defendant, in supporting its construction, highlighted that soon after the decision was handed down in Ace Woollahra Pty Ltd (formerly known as Reed Construction Services Pty Ltd) v Owners - Strata Plan 61424 [2010] NSWCA 101, Parliament enacted the Home Building Amendment (Warranties and Insurance) Act 2010 to deal with an apparent anomaly produced by the decision, introducing s 18D(1A). The defendants drew on the fact that at that time Parliament had an opportunity to legislate in order to alter the of the recent decision in Multiplex - outlined above - and did not do so. I am unconvinced this is a legitimate approach to statutory interpretation - assuming as it does that the very recent Multiplex decision was considered by Parliament - and place no weight on this point.
26 I note that the decision of Barrett J in Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187 (see particularly [19]-[22]) supports the proposition that the appropriate time for a decision to be made as to whether there is an apportionable claim under s 34(1) - to which pt 4 of the CLA will apply - is after the substantive causes of action in question have been determined. Against this proposition, the plaintiff contended that the Court should determine the issue at hand as it was likely to affect the course of the litigation in a number of ways. In all of the circumstances I have determined that it is appropriate for the Court to determine the issue of construction raised at an interlocutory stage.
Orders