The Court refused to order separate determination of limitation defences raised by a guarantor and builder in proceedings dependent on the outcome of eight related building defects proceedings worth approximately $180 million. The Court held that the proposed separate question involved embedded issues of mixed fact and law (including construction of contractual documents requiring extrinsic evidence, questions about the guarantor's knowledge and consent to a deed of settlement, and the application of s 6.20 of the Environmental Planning and Assessment Act 1979 to enforcement of a parent company guarantee), and that determining the question would divert the parties from the underlying building defects proceedings whose resolution would provide the necessary factual foundation. The judgment reaffirms that separate questions based on assumed facts are inappropriate for mixed questions of fact and law, that limitation questions should only be decided in advance of trial in the clearest of cases, and that applicants for separate questions bear the burden of proposing solutions to problems of fact-finding and finality rather than leaving them for the Court to resolve.
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