The Owners Strata Plan No 87881 v Frasers Broadway Pty Ltd

Medium Neutral Citation: The Owners Strata Plan No 87881 v Frasers Broadway Pty Ltd [2025] NSWSC 1073

Hearing dates: 28 August 2025; last submissions 2 September 2025

Date of orders: 10 October 2025

Decision date: 10 October 2025

Jurisdiction: Equity - Commercial List

Before: Rees J

Decision: Proceedings dismissed.

Catchwords: SUMMARY DISPOSAL — owners of high-rise development bring four proceedings against developers, builder and others for building defects — building work rectification order issued to developers under Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) — owners commence fifth proceedings against developers only seeking declaratory relief in respect of rectification method to comply with order — cost of rectification may be $37M — whether declaration ‘purely hypothetical’ — principles at [79]-[81] — multiplicity of proceedings — multiplicity of legal representation — principles at [93]-[99] — potential inconsistent findings and affected parties not bound by any declaration — whether an abuse of process — whether proceedings should be dismissed, stayed or case managed with related proceedings —proceedings dismissed.

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 67, 91
Design and Building Practitioners Act 2020 (NSW), s 22
Environmental Planning and Assessment Act 1979 (NSW), s 9.34
Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), ss 28, 33, 34, 39, 43
Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)

Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36
Brown v Australasian Correctional Management Pty Ltd [2000] QSC 419
Building Insurers’ Guarantee Corp v The Owners – Strata Plan No 57504 [2010] NSWCA 23
Buses + 4WD Hire Pty Ltd v Oz Snow Adventures Pty Ltd [2016] NSWSC 1017
CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075
Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189
Directed Electronics OE Pty Ltd v Isuzu Australia Ltd [2022] FCA 254
Fortius Broadway No 1 Pty Ltd and The Owners – Strata Plan Nos. 87881, 88765 and 89262 v Minister for Planning [2024] NSWLEC 1730
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd (2020) 6 QR 497; [2020] QCA 250
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Guardian Group Australia Pty Ltd v Lu [2005] NSWSC 1299
In the matter of Painaway Australia Pty Ltd (in prov liq)(admin apptd) [2011] NSWSC 205
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Mellstrom v Garner [1970] 2 All ER 9
Mycogen Plant Science Inc v Monsanto Australia Ltd [2002] FCA 613
Palmer v Citic Ltd (No 12) [2024] WASC 322
Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34
Rosein v Attorney General [1980] 35 TLR 147
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Spotlight Pty Ltd v Maintek Roofing Pty Ltd [2017] NSWSC 165
The Owners – Strata Plan No 92450 v JKN Para 1 Pty Ltd [2023] NSWCA 114
Yu v Yu [2020] NSWSC 1904

Texts Cited: RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow and Lehane's, Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis)

Category: Procedural rulings

Parties: The Owners Strata Plan No 87881 (First Plaintiff)
The Owners Strata Plan No 88765 (Second Plaintiff)
The Owners Strata Plan No 89262 (Third Plaintiff)
Fortius Broadway No 1 Pty Ltd (Fourth Plaintiff)
Frasers Broadway Pty Ltd (First Defendant)
Frasers Central Park Land No 1 Pty Ltd (Second Plaintiff)

Representation: Counsel:
F Hicks SC / SC Ipp (Plaintiffs)
DT Miller SC / M Sheldon (Defendants)
Solicitors:
HWL Ebsworth (Plaintiffs)
Minter Ellison (Defendants)

File Number(s): 2025/48263

JUDGMENT

1. HER HONOUR: The defendants (the developers) seek summary dismissal of these proceedings under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent power of the Court, or a permanent stay under s 67 of the Civil Procedure Act 2005 (NSW). In the alternative, the developers seek directions that these proceedings be case managed with four related building-defects proceedings brought by the plaintiffs (the O**wners) against the developers and others.

2. These proceedings – and the four related building-defects proceedings – concern a large, high-rise development on Broadway in Chippendale, referred to as “One Central Park”. It has residential apartments in two towers, a multi-level shopping centre and restaurants. The development comprises four strata plans. I have referred to the first to third plaintiffs as the Residential Owners and the fourth plaintiff as the Retail Owner.

3. A distinctive design feature of the development is that the towers have vertical gardens, achieved by some 1,672 planter boxes cantilevered off the building façade. Some of these planter boxes are indicated by arrows in this photograph:

4. The cantilevered planter boxes were made of a black moulded polymer box with irrigation and drainage elements. The planter boxes were clad in aluminium composite panels (ACP). The planter boxes were attached to the buildings’ concrete edge beams by a bracket. Specifically, channels were cast into the face of the concrete slab. A bracket was bolted into the channel using a T-bolt.

5. Some years after completion of the development, a planter box fell from level 29. Investigations indicate that a bad batch of bolts was amongst those used to affix the cantilever planter boxes to the building. There followed multiple regulatory and legal proceedings in respect of the development and the cantilevered planter boxes.

6. Today, there are five proceedings in this Court and a modified building work rectification order (MBWRO) issued by the Secretary of the Department of Customer Service to the developers. (The developers have completed preliminary tasks in the MBWRO, but are not due to complete rectification works until November 2026.) In these, the fifth proceedings, the Owners seek the following declaration:

Declaration that any re-installation of the existing cantilevered planter boxes (CPBs) … in performing the work mandated by the modified building work rectification order dated 16 February 2024, following the removal of the existing CPBs from the Development, would be in contravention of section 22 of the Design and Building Practitioners Act 2020 (NSW) and, therefore, contrary to law.

7. On this application, the developers relied on the evidence of construction director Peter Welsh, development director Vanessa English and solicitor Claire Tait. An affidavit by strata managing agent Claire Wilson was also tendered.

8. The owners relied on the evidence of building manager Jordan Bethune, contractor Dylan Clarke and solicitor Alexander Ottaway. The owners tendered a large number of expert reports filed in the four related building-defects proceedings by metallurgy and material science consultant Dr Stephen Yeomans, façade engineer Peter Karsai, chemical engineer Dominic D’Adam and fire engineers Steven Halliday, Jonathan Barnett and Chris Jamieson.

9. In addition, I heard oral submissions and received three ‘rounds’ of written submissions.

Residential Owners’ building-defect proceedings

10. The development was completed in about 2013. The Building Code of Australia 2009 (BCA 2009) applied at the time. BCA 2009 adopted a hierarchy specifying Performance Requirements which could be satisfied by complying with the Deemed–to–Satisfy Provisions or formulating an Alternative Solution which complied with the Performance Requirements or was shown to be at least equivalent to the Deemed-to-Satisfy Provisions.

11. Clause 2.4 of Part C1.1 of BCA 2009 then provided: (emphasis added)

2.4 Attachments not to impair fire-resistance

A combustible material may be used … in a … attachment to a building element which has the required FRL if-

(i) the material is exempted under C1.10 or complies with the fire hazard properties prescribed in-

(A) Clause 2 of Specification C1.10; or

(B) Clause 2 and 3 of Specification C1.10a; and

(ii) it is not located near or directly above a required exit so as to make the exit unusable in a fire; and

(iii) it does not otherwise constitute an undue risk of fire spread via the facade of the building.

12. This becomes relevant, as the black moulded polymer box is combustible.

13. In 2020, each Residential Owner commenced separate building-defect proceedings in this List against the developers and Watpac Construction (NSW) Pty Ltd (the builder) for breach of the statutory warranties in s 18B of the Home Building Act 1989 (NSW) (the HBA). The pleadings were substantively the same, having been drafted by the same solicitors, DEA Lawyers. The Residential Owners claimed damages, being the costs associated with repair of the alleged defects.

14. Also in 2020, the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act) was enacted. Under the RAB Act, the Secretary of the Department of Customer Service may give an order to a developer in relation to residential apartment building work (a building work rectification order) if the Secretary has a reasonable belief that a residential apartment building has a serious defect: s 33(1)(b), RAB Act. Building Commission NSW sits within the Department and administers the Secretary’s functions under the RAB Act. The Building Commissioner has wide powers to inspect premises and investigate complaints of serious defects in residential apartment building work.

15. A building work rectification order may require the developer to ensure that specified building work is carried out to eliminate, minimise or remediate the serious defect: s 33(2). Alternatively, the Secretary may specify the standard that the building work is required to meet and the nature of the building work that, if carried out, would meet that standard: s 34(1). The Secretary may also modify a building work rectification order: s 38. The Secretary may also accept a written undertaking from a developer regarding the carrying out of building work, and the developer commits an offence if it contravenes the undertaking: s 28. Importantly, section 43 of the RAB Act provides:

43 Use of building work rectification orders in proceedings

(1) A building work rectification order must be considered by the Civil and Administrative Tribunal for the purposes of determining a building claim under Part 3A of the Home Building Act 1989 and by any other court in proceedings relating to the building work the subject of the order, if the order is brought to the attention of the Tribunal or the court in the proceedings.

(2) Nothing in this section binds the Tribunal or court.

16. Since the development was completed, the Building Code of Australia has changed. National Construction Code 2022 (Building Code of Australia Vol 1), sub-para A of C2B14 now provides:

“An ancillary element must not be fixed, installed, attached to or supported by the … external face of an external wall that is required to be non-combustible unless it is … an ancillary element that is non-combustible.”

17. As a consequence, attachments can no longer meet the Deemed-to-Satisfy Provisions if combustible, although the Alternative Solution remains. To avail oneself of the Alternative Solution regime, performance tests need to be conducted to ensure compliance with the Performance Requirements.

A planter box falls

18. In April 2022, a planter box detached from the façade of level 29 of the development. Afterwards, during routine vegetation maintenance and glass cleaning, abseil contractors noticed other planter boxes had “slipped”; the heads of the bolts fixing the planter boxes to the building had broken off. These boxes were emptied of plants and soil and removed from the façade.

19. Dr Yeoman examined the bolts and, in September 2022, concluded that there was a bad batch of bolts amongst those used to affix the cantilevered planter boxes to the building.

20. Although the evidence before me is not entirely clear on this point, I infer that Building Commission NSW got involved, as the Owners entered into an Undertaking Process Deed Poll with Building Commission NSW. As, I infer, a product of the Owners’ undertaking, the Owners engaged Tradies on Ropes to secure the cantilevered planter boxes to the building by ropes tied to the top of the building. From the invoices tabulated by the strata managing agent, Ms Wilson, the Owners began this work in December 2022.

Land and Environment Court proceedings

21. Separately, in January 2023, the NSW Department of Planning and Environment issued a fire safety order to the Owners under s 9.34 of the Environmental Planning and Assessment Act 1979 (NSW), requiring them to remove ACP and related combustible sarking and insulation from the buildings. This included the cladding for the planter boxes, referred to as “Cladding Element 24”.

22. In February 2023, the Owners filed applications in the Land and Environment Court of New South Wales, seeking to revoke or modify the fire safety order. The Owners’ solicitors in those proceedings were HWL Ebsworth. The Owners contended that Cladding Element 24 complied with regulatory requirements when it was installed and the associated fire risk was acceptably low. Apparently in support of their position, the Owners obtained an estimate of the cost of fixing the planter boxes. Depending on the method undertaken, the cost ranged from some $24 million to $37 million.

23. Also in February 2023, the Residential Owners amended their Technology and Construction List statements in the two building-defects proceedings, adding two additional defect items:

| 254 | Façade | There is combustible cladding on the façade of the building as identified in the Development Control Order dated 10 January 2023 issued by the Department of Planning and Environment. | | 255 | Planter boxes in vertical gardens | Failure of the stainless steel T-Bolts used to secure planter boxes in the vertical gardens (as detailed in the report of Dr Stephen Yeomans …). |

Retail Owner’s building-defect proceedings

24. In February 2023, the Retail Owner commenced separate building defects proceedings against the developers, the builder and others, being:

(a) fire safety engineer ARUP Pty Ltd, (b) landscape architect Aspect Oculus Pty Ltd, (c) structural engineer Robert Bird Group Pty Ltd, (d) architect Peddle Thorp & Walker Pty Ltd, (e) façade consultant Surface Design Consulting Pty Ltd, (f) certifier City Plan Services Pty Ltd, (g) co-developers SH Central Park Development East Pty Ltd and Frasers Central Park Equity No 1 Pty Ltd, (h) manufacturer and supplier of the planter box support solution, Leviat Pty Ltd, (i) designer and installer of the irrigation system, BOBS Plan Pty Ltd, (j) designer of the bolts, Chapman Hutchinson Pty Ltd, (k) designer of the façade and planter boxes, Berry Design Pty Ltd; and (l) lead architect Ateliers Jean Nouvel.

25. In an extensive pleading, defects are said to include:

(a) combustible ACP cladding of the planter boxes and other combustible material affixed to the planter boxes; (b) a defective drainage system in the planter boxes, which becomes blocked and causes the planter boxes to fill with water and overflow onto the building façade, causing damage and contributing to the planter boxes detaching and falling from the building; and (c) defective bolts, which have fractured, corroded and failed, causing the planter boxes to detach and fall from the building.

26. The Retail Owner is represented by a third firm, Pinsent Masons solicitors. In the Retail Owner proceedings, the defendants are said to have breached the statutory duty in s 37(1) of the Design and Building Practitioners Act 2020 (NSW) (DPB Act). Damages are sought for economic loss caused by alleged defects. The defendants are also said to have engaged in misleading and deceptive conduct contrary to the Australian Consumer Law for representations made in respect of the compliance of the buildings and the quality or standard of the goods and services provided.

Rope support system

27. By March 2023, the Owners had completed the installation of the rope support system. In the course of doing so, some 140 planter boxes were removed as it was not possible to attach the rope support system to these boxes. According to Ms Wilson, the installation of the rope support system and early works involving the removal of planter boxes cost the Owners some $690,000.

28. Since then, Tradies on Ropes has abseiled the buildings about seven times a month. Further planter boxes were removed when a bolt supporting the box was seen to have fractured or failed. Some planter boxes were removed for inspection or testing by Building Commission NSW. Some $1.7 million has been incurred in the maintenance and inspection of the rope support system and the removal of further planter boxes. In total, 269 planter boxes have been removed to date.

29. The developers have agreed to reimburse the Owners for future costs in relation to the rope system. The developers noted, however, that the Owners’ costs were largely incurred before any order was issued to the developers to rectify the building work.

Building Commission NSW order

30. In December 2023, Building Commission NSW issued an emergency building work rectification order to the developers under s 33 of the RAB Act. The serious defect identified in the order was:

“A batch of the Type 2 Stainless Steel T-Bolts randomly distributed across the building to secure planter boxes in the vertical gardens are defective with some fracturing and failing.”

31. Building Commission NSW specified the standard of building work under s 34(1)(a) of the RAB Act. The planter boxes were to be installed in accordance with the structural engineering details approved with the construction certificates for the building. Further, all Type 2 Stainless Steel T-Bolts were to be removed and replaced. Particular tasks were also specified and times for compliance. Stage 1 required a hoarding to be erected over the public walkway within 14 days. Further, within one month, the developers were to submit a structural engineering report. Stage 2 required the developers to carry out the rectification work within three months.

32. Construction director, Mr Welsh, is responsible for liaising with Building Commission NSW on behalf of the developers. Mr Welsh started work to comply with the emergency building work rectification order, investigating hoarding options and other public safety measures, engaging in external consultants to provide the required reports and beginning discussions about possible methodologies for replacing the bolts. Ms English worked with Mr Welsh.

33. The developers wrote to Building Commission NSW, detailing why the timeframes in the emergency building work rectification order were unachievable. At the same time, the Owners supplied a letter from NSW Department of Planning and Environment, stating that the temporary rope support system which supported the planter boxes was considered satisfactory. The developers confirmed that they were committed to working with Building Commission NSW to resolve the issues raised by the order and were willing to enter into an Undertaking Process Deed Poll to address building defects. Building Commission NSW revoked the emergency building work rectification order and issued a Notice of Intention to Issue a Building Work Rectification Order.

34. In January 2024, Building Commission NSW issued a building work rectification order to the developers. A second serious defect was now added, being:

“The ability of the planter boxes to drain both stormwater rainfall catchment and sub-surface water flows effectively to the stormwater drainage system is defective.”

35. The standard of building work required to comply with the order now included the re-design of the planter boxes by a registered structural and hydraulic engineer with consideration of the defects. In February 2024, Building Commission NSW considered a request from the developers to modify the timeframes for compliance with the order and issued a Modified Building Work Rectification Order (the MBWRO). The time for compliance was now (in chronological order): a structural engineering report by 31 August 2024 (Stage 1B); hoarding erected by 31 October 2024 (Stage 1A); and rectification work completed by 31 March 2026 (Stage 2).

36. By April 2024, the developers had completed an Undertaking Process Deed Poll, agreeing to work together with Undertakings Manager, John Taylor, to agree what safety measures were required to be undertaken to ensure that the planter box issue did not pose a risk to the safety of the public, and an appropriate long-term solution to address the issue.

37. By June 2024, the developers had executed a contract with Buildcorp to erect a hoarding. Mr Taylor enquired of Mr Welsh and Ms English as to what action was being taken to ensure that the planter boxes did not pose a risk to public safety and to identify a long-term solution. Mr Welsh advised that the rope system on the façade would remain in place while the hoarding was erected. In addition, the developers were working with a number of consultants to progress a design and planning solution, including a façade engineer and technical coordinator, structural engineer, hydraulic engineer, town planner, image renderer and fire engineer.

38. In July 2024, Ms English attended an initial meeting to discuss possible options for carrying out rectification works. Various options were canvassed with the prospective builder, Buildcorp, including replacing the bolts only, replacing the bolts and cladding, replacing the cladding (either re-cladding the existing planter boxes or removing and replacing the planter boxes entirely), replacing the bolts, drainage works and cladding, or removing the planter boxes completely.

39. Ms English’s strong preference was to proceed with a rectification methodology which did not require the removal and reinstatement of the planter boxes, but replacing the bolts in situ and leaving the planter boxes in situ. The time and cost of proceeding in this manner was likely to be significantly less, cause less disruption to building occupants and maintain the original design aesthetics of the building.

40. Mr Welsh said it would make much more sense to address the bolt defect and any hydraulic defect at the same time, so that access to the façade and any disruption to occupants occurred once, not twice. The latter scenario would also significantly increase the time to complete the works and the cost of those works.

Stage 1 completed

41. On 30 August 2024, Mr Welsh provided Building Commission NSW with two reports, as required by the MBWRO. Mr Welsh reminded Building Commission NSW that the Owners’ appeal in the Land and Environment Court was listed for hearing for five days commencing on 21 October 2024. Mr Welsh suggested that they await the outcome of the appeal, to ensure that there was no duplication of scope or works, costs or unnecessary works. Otherwise, the developers were ready to commence works.

42. The first report was by structural engineer Lee Carroll. He considered that the structural design for the planter boxes was adequate and in compliance with the Building Code of Australia. Mr Carroll was not a metallurgist but assumed that the batch of bad bolts was randomly distributed across the building. Mr Carroll considered that the location of the defective bolts could not be readily identified. As there was no readily discernible way to visually identify a bad bolt, and he did not know where the bad bolts had been used, all bolts should be replaced. Mr Carroll did not provide a recommendation as to the methodology to replace the bolts. The methodology was left to the developer to develop and program.

43. The second report was by hydraulic engineer Ross Brown. He considered that the planter boxes did not form part of the stormwater drainage system but nonetheless complied with the requirements of AS/NZS 3500 Plumbing and Drainage Standards Series, even though those requirements did not apply when the building was constructed. The import of Mr Brown’s report was that the problem was not the planter boxes but how those boxes had been maintained and used since the developers handed over the building to the Owners. As Mr Brown was of the opinion that the cantilevered planter boxes were not defective and the alleged hydraulic defect was not a defect, his report did not provide a recommendation concerning the scope of rectification of the hydraulic defect.

44. In September 2024, Mr Welsh met with Mr Taylor to discuss the two expert reports. Mr Taylor was amenable to Mr Carroll’s report but thought that more needed to be done by Mr Brown. Building Commission NSW required further work to be undertaken, including by independent specialists to provide a comprehensive report detailing the cause of the drainage failure of the planter boxes and specific rectification measures. Mr Welsh sought further time to address this. In October 2024, the independent expert and the scope of their task was agreed.

45. On 31 October 2024, Ms English confirmed that the hoarding had been installed.

Building-defect proceedings merge

46. In October 2024, Stevenson J made orders in the Residential Owners’ proceedings, extending time for the Owners to put on lay and expert evidence in respect of the cladding and planter box defects. In November 2024, Ball J made orders in the Retail Owner’s proceedings, extending time for the Retail Owner to serve lay and expert evidence.

47. In December 2024, Stevenson J ordered that the four building defects proceedings be heard together and that evidence in one be evidence in the others.

Resolution of Land and Environment Court proceedings

48. Also in December 2024, the Owners’ appeal in the Land and Environment Court was resolved by agreement. The fire safety orders were modified. The Owners were not required to remove or replace the planter boxes: Fortius Broadway No 1 Pty Ltd and The Owners – Strata Plan Nos. 87881, 88765 and 89262 v Minister for Planning [2024] NSWLEC 1730.

49. According to a later email from a solicitor for the Department of Planning, Housing and Infrastructure, prior to the disposal of the Land and Environment Court appeals the Owners expressed their view to the Minister that, in order for the developers to comply with the MBWRO in a lawful manner, the developers were obliged to carry out a wholesale replacement of the cantilevered planter boxes. The Owners advised that they intended to apply to this Court for a declaration that, once the developers removed an existing cantilever planter box from the development, they were not lawfully permitted to re-attach that planter box as the linings and cladding were combustible and the Building Code of Australia prohibited the attachment of combustible ancillary elements to the external walls of the building.

50. The Department later noted that the resolution of the appeal by consent effectively deleted the requirement to replace the cladding on the external face of the planter boxes, but did not reflect the Minister’s view that the planter boxes were acceptable from a fire safety perspective. However, the Minister was concerned that the linings of the planter boxes, which were not the subject of the fire safety orders, were composed of a combustible polymer and urgent action was needed. To allow the Owners to make their application to this Court, the Minister refrained from issuing the Owners with a fresh fire safety order, mandating the wholesale replacement of the cantilevered planter boxes. Nonetheless, the Minister was on notice that the linings of the planter boxes were combustible and would not allow the fire safety hazard to endure. If the Owners’ application for a declaration was not heard on an expedited basis, then the Minister may feel compelled to issue the Owners with fresh fire safety orders mandating a wholesale replacement of the cantilevered planter boxes.

NSW Building Commission’s independent expert

51. In November 2024, the independent expert was engaged by Building Commission NSW. In January 2025, the independent expert reported to Ms English that they were making good progress. Handover documentation in relation to the planter boxes, including drawings and sections were requested. Ms English arranged for various planter boxes and downpipes to be removed from the building, as requested by the independent expert.

52. On 21 January 2025, Mr Bethune supervised the removal of two planter boxes from the façade, together with two core samples from the planter box linings, to be tested. The planter boxes were delivered to the independent expert. The core samples were delivered to Mr D’ Adam for testing. (Mr D’Adam identified the material from the liner boxes as polyethylene.) On 31 January 2025, Ms English was advised by the Owners that their preference was not to reinstate the planter boxes that the independent expert had asked to inspect until an engineered and compliant long-term solution had been agreed.

53. In conjunction with the independent expert’s work, from December 2024 on Mr Welsh requested an extension of time from Building Commission NSW, to complete Stage 2. On 23 January 2025, Mr Welsh asked that the timeframe be ‘stayed’ until both the independent expert provided the information necessary for Mr Taylor to more fully consider the planter box issue and the scope of works to carry out the Stage 2 works was developed.

These proceedings

54. On 6 February 2025, the Owners commenced these proceedings, represented by HWL Ebsworth Lawyers. The Owners sought a declaration that any re-installation of the cantilevered planter boxes, in performing the work required by the MBWRO, would contravene s 22 of the Design and Building Practitioners Act 20**20 (NSW) (DBP Act) and be contrary to law. Section 22(1) of the DBP Act provides:

22 Obligations relating to Building Code of Australia

(1) A building practitioner who does building work must take all reasonable steps to ensure that the building work, or any part of that work, complies with the requirements of the Building Code of Australia applicable to the work and other requirements applicable to the work prescribed by the regulations for the purposes of section 8(1).

Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case).

55. This was the point which the Owners had raised with the Minister in the course of resolving the Land and Environment Court proceedings; see [49]. At the same time, the Owners filed a motion seeking expedition (which is unnecessary in this List). On 13 February 2025, the developers filed the motion presently before the Court. Unproductive correspondence passed between the parties’ solicitor in respect of the overlap between these proceedings and the four building defects proceedings.

56. In parallel, on 11 February 2025, the Retail Owner sought an extension of time in its building-defect proceedings, including by reason of difficulties encountered by their experts managing competing court orders and where the Retail Owner had engaged the same experts as the Residential Owners. The Residential Owners also sought an extension of time in their proceedings in respect of the evidence concerning the cladding and planter boxes. On 25 and 26 March 2025, fire tests were conducted for the building-defects proceedings. The fire tests were attended by the developers’ fire expert, Per Olsson. (The cantilevered planter box was largely consumed by the fire but flames did not ignite the cantilevered planter box above.)

57. Ms Tait said that the Owners have yet to complete service of their evidence in the building-defect proceedings relating to cladding and planter box defects, or to address the rectification methodology for these defects.

Stage 2 progress

58. Meanwhile, on 4 April 2025, Building Commission NSW advised Mr Welsh that the independent expert report was finalised but not yet to hand. Building Commission NSW agreed to extend the deadline for Stage 2 works to 19 months from receipt of the independent expert report. On receipt of the report, the MBWRO would be amended accordingly.

59. On 21 May 2025, Mr Welsh met with the Assistant Commissioner of Building Commission NSW and the Department to discuss the status of investigations into the hydraulic defect and the Owners’ fire testing. The Assistant Commissioner advised that Building Commission NSW would support a ‘performance solution’ if it was developed, and agreed that it made sense to develop an holistic solution. As long as Building Commission NSW could see that the developers were progressing towards a resolution and working in good faith to that end, consideration would continue to be given to extensions of time.

60. On 2 June 2025, Building Commission NSW emailed the Owners and developers, advising that the prospect of continuing with an undertaking was no longer feasible. Mr Taylor’s role would be concluded. Building Commission NSW would now monitor compliance with the MBWRO to oversee its completion. On 18 June 2025, Building Commission NSW followed up Mr Welsh as to what the developers proposed to do to comply with the MBWRO, in respect of methodology, as recently discussed. Mr Welsh replied that the developer’s fire engineer was considering a potential performance solution for the cantilevered planter boxes; the outcome would drive the methodology required for the MBWRO.

61. On 22 August 2025, Building Commission NSW advised Mr Welsh that a recommendation had been made that the MBWRO be revoked. On 26 August 2025, however, Building Commission NSW advised Ms Tait that it had decided not to revoke the order at this time. The NSW Building Commission has since agreed to extend the time for the rectification works to be completed to 4 November 2026.

62. Mr Welsh understands that a long term solution to address the planter box issue will be presented to the Owners by the Department of Customer Service or Mr Taylor with a view to obtaining their agreement to that solution. The developers will then enter into an undertaking under s 28 of the RAB Act. Failing this, the Department will further modify the MBWRO. That process is ongoing. The developers are continuing to seek to agree a scope of rectification works involving all relevant stakeholders.

63. Mr Welsh said that there is presently no fire order, building work rectification order or other order that requires the cantilevered planter boxes to be replaced. The Undertaking Process Deed Poll has not been terminated. Mr Welsh expects that the Secretary will need to consider the independent expert’s report and form a position in respect of the hydraulic defect. The developers will likely have an opportunity to respond to the independent expert’s report before a final position is reached as to what action, if any, the developers will be required to take in relation to the hydraulic defect. Mr Welsh considers that it would not be reasonable to develop a design and work methodology to deal with the whole of the work that was required by the MBWRO until this is completed.

Expert evidence

64. Many of the expert reports obtained by the Owners in the four building-defects proceedings were relied on by the Owners on this application. Specifically, in December 2024, Mr Karsai provided DEA Lawyers with a report, assessing the façade issues and rectification options. Mr Karsai considered that it would be necessary to comply with the current Building Code of Australia at the time of rectification. That code no longer provided for the Deemed–to–Satisfy option. In light of this, reinstallation of the existing planter boxes would appear to be unacceptable from a Deemed–to–Satisfy perspective, although it may be possible to justify their re-use by a “performance solution”. Such an approach may require a full-scale fire test to demonstrate that the retention of the existing planter boxes posed no undue risk of fire spread.

65. In February 2025, Mr Halliday provided a report, having conducted a fire test on the moulded black plastic lining that makes up the main body of the planter boxes. The polymer material was combustible. In March 2025, Mr Jamieson also provided a fire report, noting that the ACP cladding was combustible, as were the polyethylene liners. In the event of a severe fire in the building, there was potential for the cantilevered planter boxes to be ignited, which may result in falling debris and detachment. While the likelihood of a severe fire scenario was low in a sprinkler protected building, the potential consequences of falling debris could be severe. The bad bolts did not help.

66. In May 2025, Mr Jamieson provided a further report, confirming that in light of fire testing, the cantilevered planter box assembly had burned vigorously, causing flaming debris to fall to the ground. He did not consider that reinstating the planter boxes once the bolts were rectified would be a performance solution. Mr Jamieson considered that, although the intermediate fire test did not show flaming ignition of the upper planter box, it was his view that vertical fire spread to the upper planter box would be likely to occur in a full-scale fire test.

67. In June 2025, the Owners obtained an expert report from Mr Barnett in light of the fire tests, opining that there was a significant fire propagation risk associated with the cantilevered planter box arrangement. In his view, the configuration of planter boxes as installed did not comply with the Performance Requirements of the Building Code of Australia and contravened the HBA. The configuration presented a credible risk of fire spread both upwards and downwards. He considered that the planter boxes should be replaced with a non-combustible alternative.

68. While the developers have yet to serve their expert evidence in the building-defects proceedings, on this application the developers relied on a fire engineer report by Mr Olsson, who considered that an Alternative Solution or “performance solution” could be developed to comply with either BCA 2009 or the National Construction Code 2022. A range of mitigation strategies could also be considered, to avoid the need to remove some or all of the cantilevered planter boxes from the building. Further information was needed. Nor did the planter boxes currently pose a threat to the safety of occupants or a threat to the safe evacuation of occupants. Removing the existing planter boxes would not be proportionate to the increase in safety thereby provided, considering the costs and inconvenience involved. Mr Olsson considered that the current planter box configuration did not represent an undue risk of upward fire spread. The fire testing undertaken was not configured to assess downward fire spread; the planter box configuration had not been shown to present an undue risk of downward or lateral fire spread.

This application

70. The developers did not suggest that the Owners’ claim was hopeless in the sense that it was “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130 (per Barwick CJ); [1964] HCA 6. Rather, there were two issues:

(a) was the declaration sought by the Owners something that the Court just would not make (which rather sounds like a General Steel point); or (b) failing that, should the issue sought to be agitated by the Owners be dealt with in, or together with, the four building-defects proceedings already on foot, using solicitors already retained by the Owners in those proceedings, in order to bind all relevant parties to the result.

71. It is convenient to consider each issue separately.

A declaration?

72. The developers submitted that, the declaration sought was a proxy to fix the scope (and hence the cost) of any bolt rectification work. But as matters presently stood, the relief sought by the Owners was "purely theoretical" and would not resolve any relevant controversy, as it was a declaration about "mere future possibilities": In the matter of Painaway Australia Pty Ltd (in prov liq*)(admin apptd)* [2011] NSWSC 205 at [385]. The Court was asked to make a declaration where the rectification method the subject of the declaration may never be carried out and where it is unclear that the planter boxes cannot be reinstated because of an undue risk of fire spread. Where those affected by the declaration sought needed to be bound by the result, there was a risk that these proceedings would not quell the dispute.

73. The Owners contended that these proceedings had considerable utility in providing certainty to all parties as to the rectification works required to comply with the MBWRO. The issue to be determined was dispositive of a real and pressing dispute, of real practical importance, or one in which the claimant has a real commercial interest: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at 373 [102] per Nettle J. The proceedings raised a discrete issue of statutory construction, being the statutory requirements of the RAB Act and the MBWRO. It was not 'hypothetical', as the works pursuant to the MBWRO were required to be completed regardless of the outcome of the building-defect proceedings, which were unlikely to be completed for some time. The other defendants to the building-defect proceedings had no right to challenge or comment on the MBWRO or the works required to be performed. (It was not clear that the Owners are entitled to either.)

74. The Owners submitted that the relief sought in these proceedings was not dependent on establishing liability for breach of any statutory obligation pursuant to the HBA, the DBP Act or the Australian Consumer Law. The issue that might arise in the building-defects proceedings was quantification, where the measure of damages turned on what was the necessary and reasonable scope of rectification work: Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36. That enquiry was said to be distinct. If the declaration was made, then the Owners’ claims in the building-defects proceedings could not be pressed as the rectification work would have been done. It was said to be a matter for the developers whether they wished to press any cross-claim against the builder, consultants or anyone else.

Consideration

75. As Brereton J observed in Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075, “there are established categories of cases in which the Court will generally decline, as a matter of discretion, to exercise its undoubted power to make a declaration”: at [26]. One such category is where the issue involved is “purely theoretical”, for example, a declaration that the plaintiff is not liable to be called up for military service where the plaintiff has not yet been called up: at [27], citing Rosein v Attorney General [1980] 35 TLR 147. His Honour noted, however, that the Court may “exceptionally” exercise its discretion to make a declaration even though the issue is theoretical, where the declaration “would at least quell a future potential dispute”: at [27].

76. An example is Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd (2020) 6 QR 497; [2020] QCA 250, where the Queensland Court of Appeal was asked to consider whether the funding agreement between the plaintiff and a litigation funder was enforceable, absent any dispute between them but where the defendant was alleging that the agreement was unenforceable. The Court acknowledged that it was understandable why the parties to the funding agreement pressed for a declaration as, if the agreement was unenforceable, then it would prevent the further progress of the litigation, potentially cause the funder to lose a massive amount of money, expose the representative plaintiff to an adverse costs order for which they were unprepared, and expose the plaintiff’s solicitor to a liability to pay costs: at [22].

77. In CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2, Nettle J repeated, “the Court does not lack jurisdiction to make a declaration concerning a theoretical issue, in the sense of an issue that does not presently exist but which is likely to arise in future, where the issue is productive of a real and pressing dispute, is of real practical importance or is one in which the claimant has a real commercial interest”: at [102]. Similarly, the learned authors of Meagher, Gummow and Lehane's, Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis) observe, the courts may “use their power to make declarations in appropriate cases which present merely theoretical issues, as such issues often raise matters of doubt and difficulty of a much more real and pressing nature than do many ‘genuine’ disputes”: at [19-120].

78. In their Technology and Construction List Statement, the Owners contend that all T-bolts will need to be removed and replaced. In order to do this, the planter boxes will have to be removed as it is “not physically or logistically possible” to replace the bolts without this step. However, re-attaching the existing planter boxes will contravene current Building Code of Australia, as the external walls and their components must be non-combustible. Installation of the existing planter boxes will, therefore, contravene s 22 of the DBP Act and the law.

Case management

90. Turning to the second issue, the developers submitted that the orders sought on this application were in aid of a prompt, consistent and economic resolution of rectification issues between all interested parties. Resolution of the declaration would require weeks of hearing of factual and expert evidence on matters of façade design and constructability and fire safety engineering, all of which have to be re-heard in the existing four proceedings where the other affected parties will serve their own evidence on some or all of the same matters. These proceedings were an abuse and should be dismissed in limine.

91. The developers submitted that the issue sought to be determined by the Owners in these proceedings could be raised by a separate and preliminary question in the existing building-defects proceedings, so as to bind all affected parties in the result. Contrary to the s 56 of the Civil Procedure Act, these proceedings would add time and complexity to the overall dispute, creating the potential for inconsistent findings of fact and law, not to mention multiplying legal costs. These proceedings should be heard with the other proceedings and the Owners should be represented by one of the two existing firms.

92. While the Owners accepted that there was a small subset of issues that were common to the four building-defects proceedings, it was submitted that the risk of inconsistent findings could be addressed by case management. The Owners relied on Palmer v Citic Ltd (No 12) [2024] WASC 322 at [196], where Lundberg J ordered that the same judge hear both proceedings, with evidence in each action being evidence in the other actions.

Consideration

93. It is prima facie an abuse of process for a party to institute two proceedings for the one claim – “prima facie, because there can be an explanation of why two proceedings are issued, and it is a matter for the Court to determine whether the explanation is sufficient”: Guardian Group Australia Pty Ltd v Lu [2005] NSWSC 1299 at [58] (Brereton J). As Campbell JA also observed in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104, multiple proceedings in relation to similar issues should be avoided: at [34]. Further, when all of the claims for relief that the plaintiff sought in one proceedings could be raised in existing proceedings, it is an abuse of process for the claimant to start separate proceedings that raise the same issues: at [85].

94. The problem presented by multiple proceedings may be addressed by case management. For example, in Directed Electronics OE Pty Ltd v Isuzu Australia Ltd [2022] FCA 254, Rofe J concluded that there was significant areas of overlap between two proceedings that created the possibility of substantially re-litigating points and the possibility of inconsistent findings: at [120]. However, the second proceeding was not merely a re-run of the first proceedings, which had many other parties and unrelated claims. The second proceeding was a small subset of the first proceeding and went to a specific issue, in respect of which different relief was sought: [121]. Rofe J concluded that the second proceeding could be run with “interventionist case management” to reduce duplication, the scope for oppression and the possibility of inconsistent findings. Her Honour directed that the second proceedings not be heard until judgment had been given in the first proceedings. The applicant would not be permitted to re–litigate any point on which it did not succeed in the first proceedings.

95. That would not work here, where presumably the Owners want the fifth proceedings determined first. Nor would it address the problem that parties affected by the declaration sought in the fifth proceedings are not parties to the proceedings and would not be bound.

96. In Palmer v Citic Ltd (No 12) [2024] WASC 322, Lundberg J concluded that the problem could be addressed by ordering that proceedings be tried by the same judge, either in a concurrent or in consecutive hearings, with evidence in each action being evidence in the other, “That approach carries with it the benefit that the risk of inconsistent findings is managed…, there is likely to be a reduction in litigation costs with a concurrent trial, trial time is likely to be reduced, and fewer judicial resources will be required": at [196].

97. I am not sure that such an order can conveniently be made here, where the same judge may not be available when the four building-defects proceedings are ready to be heard.

“The starting position is that each party to proceedings is entitled only to be represented by one firm of solicitors and a barrister or barristers (in the case of lead and junior counsel) instructed by that firm. There are obvious reasons for this: a party is bound by the conduct of its counsel. Where there are two counsel appearing for a party, who are separately instructed, there is the potential for the party to be putting propositions which are inconsistent. This, in turn, has a substantial potential to create confusion, increased cost and prejudice to the administration of justice and, accordingly, is only warranted when the interests of justice require it. The authorities cited are redolent with references to the deleterious consequences of allowing separate representation such that the present application must be approached with a high degree of caution.”

99. Similarly, N Adams J noted in Spotlight Pty Ltd v Maintek Roofing Pty Ltd [2017] NSWSC 165, “allowing separate representation should be rare and done only to avoid injustice": [28]; see likewise Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189 at [23]-[28]. Multiple legal representation of a party may be permitted, for example, where there is a conflict between the interests of a party and their legal representation on a particular topic, such as whether the plaintiff is entitled to indemnity under an insurance policy in respect of the claim the subject of the proceedings. No suggested conflict arises here.

Conclusion

100. The Owners hope, by commencing these proceedings, to avert a new fire safety order being issued to them by the Department of Planning and Environment, requiring the Owners to replace the cantilevered planter boxes en masse. In so doing, the Owners seek to effect which rectification method can be used to comply with the MBWRO, in circumstances where the Owners are strangers to that process. This is at a time when various rectification measures are being explored by the developers and NSW Building Commission’s independent expert, to comply with the MBWRO; their work is at an early stage. I do understand that the Owners seek to effect the method of rectification work by a crisp, legal point. But, for the reasons I have endeavoured to explain, this does not work.

101. As to the way forward, there is an overlap between the issues sought to be resolved in these proceedings and the issues being agitated in the four building-defects proceedings. There is a risk of inconsistent findings and wasted resources in agitating this issue twice. This should be avoided. The High Court observed in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32 that the grant of a permanent stay to prevent an abuse of process is a decision of last resort on the basis that no other option is available: at [3]. But those comments were made in the context where the plaintiff would never be able to agitate their claim. That is not the case here. The Owners have four other proceedings on foot to choose from. I accept that the Owners may wish to raise this issue in advance of determination of the remaining building-defect claims. The Court is well equipped to determine such an issue separately and in advance of other issues.

102. I agree with the developers that the Owners should not have a third set of legal representation. That does not follow if I simply make orders for these proceedings to be case managed with the existing four building-defects proceedings. Nor does it necessarily follow that other affected parties will be bound by the result, absent joining those parties to these proceedings.

103. Where I have not determined the substance of the Owners’ claim for relief, any dismissal of these proceedings does not prevent the Owners from re-agitating the issue the subject of the proposed declaration in the four building-defects proceedings: s 91, Civil Procedure Act; Yu v Yu [2020] NSWSC 1904 at [56] (Williams J). I consider that the appropriate course is to dismiss these proceedings under r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), where the relief sought in these proceedings can, and should, be sought in proceedings already on foot. The Owners can decide whether to raise the issue in the four building-defects proceedings, including in advance of the trial of all issues and, in that event, which of their current legal representation can deal with the matter. Of course, there is nothing to prevent the Owners from briefing the counsel who appeared on this application to appear on any separate question.

Orders

104. For these reasons, I make the following orders:

105. Pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), dismiss the proceedings.

106. Order the plaintiffs to pay the defendants’ costs of the motion filed on 13 February 2025.

107. As to the costs of the proceedings, direct the parties to confer and, if agreement cannot be reached, provide submissions (limited to three pages) and any affidavits in support of their proposed costs orders by 24 October 2025, with this issue to be determined on the papers.

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Amendments

29 October 2025

Amendment to cross-reference in catchwords.