The Owners – Strata Plan No. 82089 v Omaya Holding Pty Ltd

This is an application by notice of motion filed 21 June 2024 by the third defendant, Omaya Investments Pty Ltd, and the sixth defendant, BSM Holdings Pty Ltd, for summary dismissal under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or alternatively the striking out of allegations made against Omaya Investments and BSM in the third amended technology and construction list statement filed 9 July 2024 in their entirety under r 14.28 of the UCPR. In support of the summary dismissal and strike out application, Omaya Investments also seeks leave to withdraw any admission made in the latest form of its list response and cross-claim.

The application arises in proceedings which concern alleged defective building works in the construction of a residential strata apartment building of 99 units located at Strathfield, New South Wales (Property). The proceedings have been brought by the plaintiff, The Owners – Strata Plan No. 82089 (Owners Corporation), in its capacity as the owner of the common property at the Property and as agent for the individual lot owners under the Strata Schemes Management Act 2015 (NSW).

Omaya Investments asserts that once I give leave for the withdrawal of the admissions, the allegations made against Omaya Investments and BSM should be summarily dismissed or struck out. The Owners Corporation opposes the application in all respects.

There is some urgency in the determination of the application as there is a reference in the proceedings commencing on 26 August 2024 in respect of part of the defect issues, with the remaining defect issues to be determined at the trial fixed for 11 to 15 November 2024.

For the reasons set out below, I have determined that:

It is common ground that the construction of the residential strata apartment building at the Property took place between 2009 and 2011 pursuant to a written Construction Contract dated 4 September 2009 between the first defendant, Omaya Holding Pty Ltd, as the principal and the second defendant, Arinson Pty Ltd, as the contractor. I will refer to the written Construction Contract to differentiate it from what is called the Building Contract in the list statement, which I understand to comprise elements beyond the written Construction Contract.

Each of Omaya Holding, Arinson, Omaya Investments and BSM (collectively the defendants) form part of the Omaya Group which undertakes various building development and investment activities. The Omaya Group is associated with Antoine Bechara and his wife, Georgette Bechara.

Mr Bechara is the sole director of Omaya Investments, BSM and Arinson. Mrs Bechara is the sole director of Omaya Holding and the sole shareholder of Omaya Investments and BSM. Omaya Holding is the sole shareholder of Arinson.

Arinson was the owner of the Property before it was developed as residential strata apartments.

Omaya Holding is the licensed builder within the Omaya Group and in that capacity entered into the Construction Contract with Arinson.

Omaya Investments was the trustee of the Bechara Family Trust established by the Deed of Trust dated 25 February 2002. The Deed of Trust relevantly provides:

The Trust Fund of the Bechara Family Trust includes numerous properties located across Strathfield, Burwood and Mortlake (Trust Properties).

On 16 May 2019, Mr Bechara, Omaya Investments and BSM entered into the Deed of Removal & Appointment of Trustee for the Bechara Family Trust in which Mr Bechara removed Omaya Investments as the Trustee of the Bechara Family Trust and appointed BSM as the Trustee of the Bechara Family Trust in its place.

On 16 May 2019, all of the Trust Properties were transferred from Omaya Investments to BSM without monetary consideration to reflect the change of the Trustee of the Bechara Family Trust that day.

There have been multiple amendments to the form of the claims made by the Owners Corporation. They are now as stated in the third amended summons and list statement. In light of the list statement only recently having been filed (on 9 July 2024), no response has yet been made to it.

In summary, the Owners Corporation seeks damages against Omaya Holding, Arinson and Omaya Investments in respect of alleged breaches of warranties pursuant to s 18B of the Home Building Act 1989 (NSW) and/or breaches of the duty to exercise reasonable care to avoid economic loss caused by defects pursuant to s 37(1) of the Design and Building Practitioners Act 2020 (NSW) (Design Act). The Owners Corporation asserts that those breaches arise in respect of general building and fire safety defects resulting from defective work during the construction of the units on the Property. The Owners Corporation also seeks a declaration that BSM is required to indemnify Omaya Investments for the damages sought by the Owners Corporation out of the assets of the Bechara Family Trust.

The latest response of the defendants takes the form of the amended technology and construction list response filed 15 June 2021, which answered the amended technology and construction list statement filed 25 March 2021.

Arinson and Omaya Investments have brought a cross-claim against Integrated Design Group Pty Ltd (IDG) and Bernie Cohen & Associates Pty Ltd trading as Essential Certifiers in the amended technology and construction cross-claim list statement filed 15 June 2021.

Part C of the list statement and the cross-claim list statement set out the contentions and part C of the list response sets out the defendants’ responses to those contentions. In this judgment, where I refer to any particular paragraphs in part C of the list statement, list response or cross-claim list statement, I have expressly identified them using the letter C (for example, [C10]). Similarly, I will refer to paragraphs in part A of the list statement, list response or cross-claim list statement by using the letter A (for example, [A10]).

The principal allegations which are the subject of challenge on this application are those against Omaya Investments and BSM.

The fundamental allegation made against Omaya Investments is in [C12] of the list statement, which states:

It is this allegation that the “Building Contract” was not only between Omaya Holding and Arinson but also with Omaya Investments that then forms the basis for claims made against Omaya Investments for breaches of statutory warranties under the Building Act (which appear in [C15], [C16], [C19] and [C20] of the list statement) and breaches of the duty to exercise care under the Design Act (which appear in [C20J]–[C20N] of the list statement).

In particular, it is alleged that the Works were carried out at the Property by Omaya Holding, or in the alternative, Omaya Investments ([C19] of the list statement) and Omaya Investments was a person who carried out construction work under the Design Act ([C20J] of the list statement).

No particulars of the Owners Corporation’s allegations that Omaya Investments is a party to the Building Contract and carried out the Works have been provided. No particulars of the Owners Corporation’s allegation that Omaya Investments carried out construction work have been provided.

During the hearing, the Owners Corporation acknowledged that particulars are lacking and should be provided in relation to the allegations against Omaya Investments relating to the Design Act (T15.22–24).

But the Owners Corporation resisted the notion that any particulars in relation to the allegation that Omaya Investments is a party to the Building Contract and carried out the Works need to be provided because it relies on what it says are admissions made by Omaya Investments in the list response and the cross-claim list statement. The Owners Corporation says that it has conducted these proceedings on the basis of these admissions and does not need to rely on the proof of any other facts to prove the central allegation.

[C12] of the list response responds to the fundamental allegation in [C12] of the list statement (quoted above), stating:

This response does not contain any form of admission that Omaya Investments was a party to the Building Contract. In fact, that allegation is clearly denied.

One of the alleged admissions from the list response on which the Owners Corporation relies is that in [C18]. [C18] of the list statement and [C18] of the list response are in the following form:

On its face, this response contains an obvious error by referring to Omaya Investments when the only allegation is directed at Arinson.

The fact that [C18] of the list response contains a clear error is made even more obvious when considering the allegations in the contentions in the list statement and responses in the surrounding paragraphs of the list response, which can be summarised as follows:

Except for the obvious error of the mistaken reference to Omaya Investments rather than Arinson in [C18] of the list response, the case made in the list response is that Omaya Investments was not a party to the Building Contract as alleged and did not carry out work under it.

The Owners Corporation also relies on alleged admissions in other parts of the contentions in the list response. These all arise in the part of the contentions in the list response where it is alleged that IDG and Essential Certifiers are concurrent wrongdoers as defined in s 34(2) of the Civil Liability Act 2000 (NSW). The parts of the list response said to contain these alleged admissions are:

All of these parts of the list response must be read in light of [C34](1)] and [C34(2)] of the list response which makes it clear that all of the allegations in [C35]–[C58] of the list response are only made to support the allegation that IDG and Essential Certifiers were concurrent wrongdoers and, in particular, are predicated on it being found in the proceedings that:

The Owners Corporation also refers to paragraphs in the cross-claim list statement as giving rise to alleged admissions on which it has relied. These alleged admissions are said to reside in the following parts of the cross-claim list statement:

But every paragraph of the cross-claim list statement has to be read in light of the following parts of it:

These parts of the cross-claim list statement make it clear that the allegations contained in it are entirely predicated on the allegations made in the list statement by the Owners Corporation against Arinson and Omaya Investments, which are expressly denied in the cross-claim list statement and repeated without admission, being accepted.

I cannot see any reason why the alleged admissions in the list response and the cross-claim list statement could have legitimately formed the entire basis on which the Owners Corporation has conducted its case against Omaya Investments that it was a party to the Building Contract and conducted the Works, as alleged in [C12] and [C19] of the list statement respectively. This is because those parts of the list response and the cross-claim list statement are only enlivened upon the Owners Corporation having succeeded in its claim against Arinson and Omaya Investments.

I was also taken to a number of documents which the Owners Corporation says it could rely upon if it is unable to rely on the alleged admissions to prove that Omaya Investments was substantively involved in the design and construction of the building on the Property covering the period from April 2003 to January 2011. The Owners Corporation says that these matters demonstrate that Omaya Investments was involved in each of the following:

The Owners Corporation says that these works arguably fall within the extended meaning of residential building works under the Building Act as identified in Grygiel v Baine [2005] NSWCA 218 by Basten JA at [57].

The relief sought against BSM in the amended summons is contained in prayer 4 which seeks:

The allegations made in support of this relief are stated in [C11], [C11A], [C11B] and [C20O] of the list statement, which are in the following form:

In short, the Owners Corporation simply relies on the fact that BSM is now the Trustee of the Trust Properties for the Bechara Family Trust in place of Omaya Investments as the basis for the declaration of the indemnity.

There is an obvious error in [C18] of the list response where it refers to Omaya Investments rather than Arinson. I do not regard this obvious error as amounting to any form of admission, as the surrounding paragraphs make clear for the reasons I have stated above.

Section 64 of the Civil Procedure Act 2005 (NSW) (CPA) provides:

The overriding purpose of the CPA and the UCPR in their application to proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.

In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.

The amendment power in s 64(2) is subject to s 58 of the CPA. Section 58(1) and (2) of the CPA require that in making any order for the amendment of a document I must seek to act in accordance with the dictates of justice, which include the matters stated in ss 56 and 57 of the CPA, and may have regard to the following matters to the extent I consider them to be relevant:

In my view, the just, quick and cheap resolution of the real issues in these proceedings necessitates that the obvious error in [C18] of the list response be corrected now. To do otherwise would cause a significant injustice to Omaya Investments and the diversion of the parties’ attention away from one of the real issues in the proceedings, which is whether Omaya Investments is a party to the Building Contract and performed the Works as alleged.

Sections 64(1) and (2) of the CPA empower me to make an amendment of my own motion for the purposes of determining the real questions in dispute between the parties: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, French CJ at [14]. To enable determination of the real questions in dispute between the parties in these proceedings, I propose to order the necessary amendment to [C18] of the list response by deleting the word “Investments” and replacing it with the word “Arinson”.

The relevant principles concerning the withdrawal of admissions are conveniently collected in NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 969, by Harrison J (as the CJ at CL then was) at [9]–[13] as follows:

For the reasons stated above, I do not consider that any of the alleged admissions in the list response or the cross-claim list statement are truly “admissions” to the allegations made in the list statement because they are only expressly made on the conditional basis of liability first being found against Omaya Investments on those allegations.

In other words, the way in which the alleged admissions are made is in the routine way in which a party pleads to allegations against it to the effect that “if I am liable to you on the allegations you make against me (which I deny), here is what I allege in my case against others.” This is the manner in which the concurrent wrongdoer defence has been constructed in the list response and the cross-claim has been constructed in the cross-claim list statement. If the Owners Corporation has been proceeding on the basis that it did not need to prove the allegations in the list statement against Omaya Investments by leading any evidence then that is a matter for it.

If I had concluded that the alleged admissions were “admissions” then it would have been necessary for Omaya Investments to make a proper application under r 12.6 of the UCPR by first serving a notice of withdrawal identifying the admission and stating the extent of the withdrawal and to meet the requirements in the principles stated in NM Rural Enterprises. This was not done. Instead the entirely unsatisfactory approach was taken of seeking the following order in paragraph 4 of the notice of motion:

The defendants are required to identify clearly and precisely the admissions to be withdrawn. It is not a matter for the court to identify any admission made in the list response or the cross-claim statement. It is a matter for the defendants to do so by adhering to the requirements of r 12.6 of the UCPR. Nor is it a matter for the court to decide whether such withdrawal is required to the extent necessary for the summary dismissal or strike out application. The defendants must make their own strategic decisions on the way in which they seek to run their case. It is inappropriate for the court to enter the arena to make the sorts of decisions which are rolled up in the form of paragraph 4 of the notice of motion.

The only “admission” I would be prepared to allow to be withdrawn is the inadvertent one made in error in [C18] of the list response, which I will order to be amended as stated above.

Omaya Investments and BSM each seek the summary dismissal or striking out of the claims against them in the list statement.

The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR. Relevantly, rr 13.4(1) and (2) of the UCPR provide:

For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 128–129; [1964] HCA 69, in which it was held by Barwick CJ that:

In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way (citation omitted):

This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, by French CJ and Gummow J at [24].

In Shaw v State of New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:

This assessment is to be made by taking the party making the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

The recent Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides:

In relation to the power to strike out a pleading, the court must give consideration to the importance of pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. But the court does not treat them as rigid boundaries beyond which the parties may never stray.

In Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517, wrote (reading past the gender inappropriate use of “man” from more than 100 years ago):

These themes were emphasised in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296–297, who stated (authorities omitted):

In Banque Commerciale, Brennan J added at 288:

Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings.

These matters were emphasised by Adamson J (as her Honour then was) in Dickens v New South Wales (No 3) [2018] NSWSC 485 at [36] and [38]–[39]:

The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, Johnson J at [32]–[35], as follows:

The court may receive evidence on the hearing of an application for a summary dismissal under r 13.4 of the UCPR or the strike out of a pleading under r 14.28 of the UCPR: r 13.4(2) and r 14.28(2) of the UCPR.

Turning to the allegations made against Omaya Investments, it is abundantly clear that the allegations made in the list statement do not come remotely close to meeting the high degree of certainty I must have in applying the General Steel test that they are “so obviously untenable that [the claim] cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “disclos[e] a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action” and “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”. I am satisfied on the materials to which I have been taken that there is a genuine controversy over the question of whether Omaya Investments carried out design and construction work on the building at the Property and is liable for the alleged defective work.

It is alleged in [C12] of the list statement that Omaya Investments was a party to the Building Contract, which is a wider allegation than the Building Contract being the written Construction Contract alone, and in [C19] of the list statement that Omaya Investments carried out the Works at the Property. I have seen material on which these allegations could be properly made.

I do, however, consider that the allegations in the list statement against Omaya Investments meets the relevant criteria for being struck out because in their present form they are embarrassing — they are made at such a level of generality that Omaya Investments does not know in advance the case it has to meet. Omaya Investments should not be left to guess why it is alleged that it was a party to the Building Contract (in light of the fact that it was not a party to the written Construction Contract) or why it is alleged to have carried out the Works under it. The same is true of the generality of the allegation in [C20J] of the list statement that Omaya Investments carried out construction work within the meaning of the Design Act.

The defect from which the list statement suffers in relation to the case against Omaya Investments is that the allegations made against Omaya Investments should be fully stated. The Owners Corporation admits that it needs to properly particularise the claim made under the Design Act against Omaya Investments.

It is no part of the court’s function to draft the list statement for the Owners Corporation. If the Owners Corporation wishes to rely on the facts proved from alleged admissions, documents or events then those facts should be fully and properly stated in support of the allegations against Omaya Investments that it was a party to the Building Contract and conducted the Works as alleged in [C12], [C19] and [C20J] of the list statement respectively.

I consider that this is an appropriate case in which the central parts of the list statement which plead allegations against Omaya Investments should be struck out and leave given to the Owners Corporation to replead them. Those central parts are in [C12], [C19] and [C20J] of the list statement (the Owners Corporation having conceded that [C20J] has not been sufficiently particularised).

In essence, the Owners Corporation claims to be entitled to obtain a declaration of the right of indemnity as between Omaya Investments (as the old trustee of the Bechara Family Trust) and BSM (as the current trustee of the Bechara Family Trust) from the Trust Properties. The Owners Corporation rests its claim on the principles discussed in CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [51]–[58] and [68]–[69], albeit that this was decided in the context of a declaration of indemnity sought against an insurer.

The defendants submit that the right of indemnity of Omaya Investments as the former trustee of the Bechara Family Trust inures and BSM as the current trustee of the Bechara Family Trust is required by law to ensure that if there is any claim made against Omaya Investments which is successful, Omaya Investments has recourse to the Trust Properties. The defendants say that the transfer of the Trust Properties on 16 May 2019 from Omaya Investments to BSM did nothing to affect this right of indemnification. The defendants rely on Agusta Pty Limited v Provident Capital Limited (2012) 16 BPR 30,397; [2012] NSWSCA 26 at [37]–[45].

Turning first to Agusta, it was a case in which a father and son (the Ferellas) became the trustees of a unit trust known as the Cavallino Unit Trust by a deed of settlement in January 1995 and then purchased land in Kings Park which became trust property. In April 2005, Riva NSW Pty Ltd was then appointed as sole trustee in place of the Ferellas and in February 2006, Agusta Pty Ltd was appointed as sole trustee in place of Riva. The Kings Park property was not immediately transferred by the Ferrallas to Agusta.

In March 2006, Agusta then entered into a written contract of loan from Provident Capital Ltd under which Agusta agreed to pay certain fees to Provident. In June 2006, Provident brought proceedings to recover those fees and obtained judgment against Agusta for the fees, interest and costs. Two months later the Kings Park property was transferred by the Ferellas to Agusta.

In June 2009, Provident obtained the issue by the District Court of a writ for the levy of property (commonly known as a writ of execution) directed to Agusta; however, the Kings Park property was not sold by the Sheriff before the writ lapsed. Provident applied to the District Court for a new writ but it was not forthcoming.

In June 2010, the daughter of the father applied to the Registrar-General to record Riva as the registered proprietor of the Kings Park property in place of Agusta.

In the proceedings at first instance, the trial judge held that Agusta’s June 2010 transfer was made with the intent to defraud creditors and therefore put it beyond Provident’s power to obtain a new writ of execution. The trial judge granted relief, including declarations that Agusta had a right of indemnity out of the assets of the Cavallino Unit Trust to satisfy the Provident judgment debt, interest and costs and that Agusta possessed an equitable lien over those trust assets to satisfy the debt.

On the appeal the issues arose (at [30]) as to whether Provident could or might have obtained satisfaction of its judgment out of the Kings Park property through a new writ of execution or some other process had Agusta remained the registered proprietor of it and whether any means of obtaining satisfaction by resort to the land was available to Provident after Riva became the registered proprietor of it.

In Agusta, Barrett JA (with whom Campbell JA and Sackville AJA agreed) at [37]–[45] said:

Further passages from Agusta are also relevant, Barrett JA at [55] and [57] saying:

To similar effect, the nature of the interest of a former trustee to be indemnified from the trust assets for liabilities properly incurred in the course of a trusteeship and for any creditors of a former trustee to be able to enforce the indemnification by subrogation to the former trustee’s rights were described in Jaken Properties Australia Pty Ltd v Naaman (2023) 12 NSWLR 318; [2023] NSWCA 214, by Bell CJ at [4], where his Honour set out the following well-established propositions:

Bell CJ was in dissent in Jaken Properties, with Leeming JA (with whom Kirk JA agreed) writing the majority judgment, but there was no difference between their Honours over the assistance that equity will give to a former trustee in aid of the right of indemnity, Leeming JA at [116] stating:

The High Court has granted special leave to appeal the decision in Jaken Properties: Naaman v Jaken Properties Australia Pty Ltd [2024] HCASL 21. None of the propositions stated above are likely to be at issue in the appeal.

These passages of Agusta and Jaken Properties support the proposition that in the present case Omaya Investments (as the old trustee of the Bechara Family Trust) has a right of indemnity against the Trust Properties held by BSM (as the new trustee of the Bechara Family Trust) by way of equitable charge or lien, which claim should be made against BSM and takes priority over any claims to those assets of the beneficiaries of the Bechara Family Trust. They also make clear that Omaya Investments could seek a judicial sale of the Trust Properties and the appointment of a receiver to discharge any liability to the Owners Corporation which might be found in these proceedings and obtain an interlocutory injunction to prevent the transfer of the Trust Properties in the interim. While the Owners Corporation has no direct resort to the Trust Properties, if it obtains judgment against Omaya Investments it may assert a claim against BSM by way of subrogation of Omaya Investment’s right of indemnity as the former trustee of the Bechara Family Trust.

In this way, the Owners Corporation has a real interest in the right of indemnification which Omaya Investments may exercise against BSM in respect of the Trust Properties. Adopting the types of considerations which are referred to in CGU Insurance at [68]–[69] (that the declaration would be binding as between the litigants and prevent relitigation), that gave a stranger to an insurance contract standing to seek a declaration of the right of indemnification under that contract as between the insurer and the insured, I do not think that the claim for a declaration of the right of indemnification of Omaya Investments against BSM in the summons and list statement can be regarded as having such a high degree of certainty that it falls within the General Steel test. It is not “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”. It does not “disclos[e] a case which the Court is satisfied cannot succeed”. Nor is this a case where “under no possibility can there be a good cause of action” or where it is “manifest that to allow [the pleadings] to stand would involve useless expense”.

It is also not a claim which should be struck out. The list statement contains the allegations of material facts with sufficient clarity to allow BSM to understand the claim which is made against it.

Whether the Owners Corporation is entitled to such a declaration is plainly an issue which should be decided after the trial of these proceedings.

For the reasons stated above, I propose to make the following orders:

I will make directions for hearing the parties before determining the issue of costs in chambers.