Residential Focus – Lexology
NSW Supreme Court determines that the statutory duty of care applies to all buildings
Since the introduction of the statutory duty of care in section 37 of the Design and Building Practitioners Act 2020 (DBP Act), there have been different schools of thought regarding the application of the duty, namely that the statutory duty of care applies to:
Class 2 buildings and residential building work for the purpose of the Home Building Act 1989 (NSW) (HBA), or
any building (as defined i…….
NSW Supreme Court determines that the statutory duty of care applies to all buildings
Since the introduction of the statutory duty of care in section 37 of the Design and Building Practitioners Act 2020 (DBP Act), there have been different schools of thought regarding the application of the duty, namely that the statutory duty of care applies to:
- Class 2 buildings and residential building work for the purpose of the Home Building Act 1989 (NSW) (HBA), or
- any building (as defined in the Environmental Planning and Assessment Act 1979 (EPA Act).
For the time being, this has been resolved by the NSW Supreme Court’s decision in Goodwin Street Developments atf Jesmond Unit Trust v DSD Builders (in liq) [2022] NSWSC 624, which has provided the first guidance from the Court as to the application of the duty, since it commenced in June 2020.
The Court determined that the duty of care applies to work completed on any building, as defined in the EPA Act.
The facts
In 2017, the plaintiff (Goodwin) entered into a contract with the first defendant (DSD) to construct three residential boarding houses for university student accommodation. The second defendant (Roberts) was the representative of DSD who negotiated and administered the contract and controlled the work completed.
In early 2018, disputes arose between Goodwin and DSD relating to defects and progress and, as a result, works were suspended. After the works were suspended, Goodwin’s directors observed damage to the construction work, terminated the contract and commenced proceedings against DSD. Goodwin later joined Roberts as a defendant to the proceedings.
A liquidator was appointed to wind up DSD in 2021. The proceedings against it were stayed, and Goodwin continued its claim against Roberts.
The issues
The primary issues for the Court to determine were:
- whether Roberts carried out “construction work” on the site for the purpose of section 37 of the DBP Act
- whether Roberts breached that statutory duty of care.
The Court’s decision
His Honour acknowledged the difficulty in interpreting the ‘labyrinthine’ provisions of the definitions in the DBP Act, before determining that Mr Roberts did carry out “construction work” for the purposes of section 37.
His Honour’s reasons for the decision were as follows:
- the duty of care under section 37 of the DBP Act applies to “construction work”
- “construction work” is defined in section 36(1) of the DBP Act to include “building work” and “supervising, coordinating, project managing or otherwise having substantive control over” the carrying out of any “building work”</…….
Source: https://www.lexology.com/library/detail.aspx?g=72f35ba4-cc4f-4f7e-8e40-ff21273c283c
