Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. Casumo Constructions Pty Ltd is a licensed builder of residential works. In these proceedings, the Owners Corporation of Strata Plan 88695 alleges that Casumo breached its duties under the Design and Building Practitioners Act 2020 (NSW) and the Home Building Act 1989 (NSW) by, inter alia, installing defective aluminium composite panels (ACPs) in three residential apartment buildings in Mascot, New South Wales.

2. Casumo's fifth cross-claim list statement alleges that a German company, 3A Composites GmbH, who supplied the ACPs to Casumo through a distributor, breached the guarantee as to acceptable quality contained in s 54 Australian Consumer Law (ACL). To the extent Casumo is found liable to the Owners Corporation, Casumo seeks damages for 3A Composite's alleged breach of that guarantee pursuant to s 272(1)(b) ACL.

3. By notice of motion filed on 16 April 2025, 3A Composites seeks orders that the fifth cross-claim cross-summons be set aside.

4. In its notice of motion, 3A Composites also sought to discharge the orders made by Stevenson J on 14 March 2025 granting substituted service of the fifth cross-claim cross-summons, but abandoned those prayers for relief orally at the commencement of the hearing today.

5. 3A Composites has brought the present application without entering an appearance, which it may do pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 12.11(4), as an application under r 12.11(1) does not amount to submission to this Court's jurisdiction.

6. For the reasons that follow, 3A Composite's notice of motion must be dismissed.

Setting aside fifth cross-claim cross-summons

7. UCPR r 12.11(1)(a) empowers this Court to make "an order setting aside the originating process" on the application of a defendant.

8. 3A Composites submits that the fifth cross-claim cross-summons ought be set aside on the basis that it has no prospects of success, because:

1) Casumo did not acquire the ACPs as a "consumer" within the meaning s 3 ACL; instead, it obtained them "for the purposes of re-supply to the building owners"; and

2) 3A Composites would have a complete defence to the cross-claim under s 273 ACL, because Casumo's action for damages is time-barred.

9. For 3A Composites to succeed in setting aside the fifth cross-claim cross-summons, there must be "a high degree of certainty" that if the claim "were allowed to go to trial in the ordinary way", Casumo would fail: Agar v Hyde (2000) 201 CLR 552 at [57] (Gaudron, McHugh, Gummow and Hayne JJ).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c1cb29d61b1fa1b71706d)

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