The Owners - Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068

The Owners - Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068

Leave to amend was refused because the proposed DBP Act claim merely identified alleged defects and asserted that they constituted breach of the statutory duty of care. The DBP Act removes the need to prove the existence of a duty but does not dispense with the need to plead and prove breach consistently with common law negligence principles and s 5B of the Civil Liability Act 2002 (NSW). A plaintiff alleging breach of the statutory duty of care by a builder must identify the specific risks the builder was required to manage and the precautions that should have been taken; a defect or breach of Home Building Act statutory warranties does not, of itself, establish breach of the statutory...

Jurisdiction
Australia
Judgment Date
15 November 2021
Procedural Posture
Equity Technology and Construction List; Building and Construction / Plaintiff's Notice of Motion Seeking Leave to File and Serve a Second Further Amended Technology and Construction List Statement Adding a Claim Under S 37 of the Design and Building Practitioners Act 2020 (nsw)
Outcome
Leave to amend Technology and Construction List Statement was refused in the proposed form.
Legal Topics
['design and Building Practitioners Act 2020 (nsw) S 37 Statutory Duty of Care' 'civil Liability Act 2002 (nsw) S 5 B' 'leave to Amend Technology and Construction List Statement' 'pleading Breach of Duty' 'building Defects']
['building and Construction' 'civil Procedure' 'negligence'] ['design and Building Practitioners Act 2020 (nsw) S 37 Statutory Duty of Care' 'civil Liability Act 2002 (nsw) S 5 B' 'leave to Amend Technology and Construction List Statement' 'pleading Breach of Duty' 'building Defects']

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Procedural Posture

Equity Technology and Construction List; Building and Construction / Plaintiff's Notice of Motion Seeking Leave to File and Serve a Second Further Amended Technology and Construction List Statement Adding a Claim Under S 37 of the Design and Building Practitioners Act 2020 (nsw)

Legal Issues

  1. 1 ['Whether the Owners Corporation should be granted leave to amend its Technology and Construction List Statement in the proposed form to add a claim for breach of the statutory duty of care under s 37 of the Design and Building Practitioners Act 2020 (NSW).' 'Whether, for a claim under s 37 of the Design and Building Practitioners Act 2020 (NSW), it is sufficient merely to identify alleged defects and allege that they establish breach of duty.' 'Whether the proposed pleading had to identify the specific risks the builder was required to manage and the precautions the builder should have taken to manage those risks.']

Ratio Decidendi

Leave to amend was refused because the proposed DBP Act claim merely identified alleged defects and asserted that they constituted breach of the statutory duty of care. The DBP Act removes the need to prove the existence of a duty but does not dispense with the need to plead and prove breach consistently with common law negligence principles and s 5B of the Civil Liability Act 2002 (NSW). A plaintiff alleging breach of the statutory duty of care by a builder must identify the specific risks the builder was required to manage and the precautions that should have been taken; a defect or breach of Home Building Act statutory warranties does not, of itself, establish breach of the statutory...

Court Disposition

Leave to amend Technology and Construction List Statement was refused in the proposed form.

Orders

  • ["The Owners Corporation's leave to amend its List Statement in the form proposed is declined." 'The Owners Corporation is to be allowed one further opportunity to formulate an Amended List Statement.' 'The parties should confer and agree on a timetable to enable that to occur.' 'If the parties cannot agree on...