Chan v Acres [2015] NSWSC 1885

Chan v Acres [2015] NSWSC 1885

Owner-builder breached statutory warranties for the residential building work under s 18B Home Building Act 1989 (NSW) except for defects outside his responsibility. The engineer did not owe a duty of care to the plaintiffs due to absence of relevant vulnerability and reliance. The council, acting as Principal Certifying Authority, owed and breached a duty of care to the plaintiffs, as they were relevantly vulnerable and relied on its certification. The defects and resulting loss were due to negligent inspections and issue of final occupation certificate. Council is liable for the cost of rectification, subject to agreed calculation. Apportionment as between liable parties reflects the...

Parties
First Plaintiff: Rebecca Chan; Second Plaintiff: Warren Cox; First Defendant: Robert Acres; Second Defendant: Alpha Building Services Pty Ltd; Third Defendant: Mitchell Howes Civil & Structural Engineers Pty Ltd; Fourth Defendant: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
11 December 2015
Procedural Posture
Principal Judgment / Trial
Outcome
Council (PCA) liable for cost of rectification of defects; owner-builder liable for statutory warranty breaches except for excluded defects; engineer not liable to plaintiffs; parties to agree draft orders giving effect to judgment; orders stood over for calculation and directions.
Legal Topics
Duty of Care, Statutory Warranties, Pure Economic Loss, Apportionment of Liability, Breach of Statutory Duty, Causation, Rectification/damages
Negligence Statutory Warranty Building and Construction Equity Duty of Care Statutory Warranties Pure Economic Loss Apportionment of Liability +3 more

Case Brief

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Parties

Rebecca Chan

First Plaintiff

Warren Cox

Second Plaintiff

Robert Acres

First Defendant

Alpha Building Services Pty Ltd

Second Defendant

Mitchell Howes Civil & Structural Engineers Pty Ltd

Third Defendant

Ku-ring-gai Council

Fourth Defendant

Procedural Posture

Principal Judgment / Trial

Legal Issues

  1. 1 Did the first defendant (owner-builder) breach statutory warranties for residential building work under the Home Building Act 1989 (NSW)?
  2. 2 Did the third defendant (engineer) owe and breach a common law duty of care to the plaintiffs regarding inspections of the structural works?
  3. 3 Did the fourth defendant (council, acting as PCA) owe and breach a common law duty of care to the plaintiffs with respect to critical stage inspections and issuing the occupation certificate?

Ratio Decidendi

Owner-builder breached statutory warranties for the residential building work under s 18B Home Building Act 1989 (NSW) except for defects outside his responsibility. The engineer did not owe a duty of care to the plaintiffs due to absence of relevant vulnerability and reliance. The council, acting as Principal Certifying Authority, owed and breached a duty of care to the plaintiffs, as they were relevantly vulnerable and relied on its certification. The defects and resulting loss were due to negligent inspections and issue of final occupation certificate. Council is liable for the cost of rectification, subject to agreed calculation. Apportionment as between liable parties reflects the...

Court Disposition

Council (PCA) liable for cost of rectification of defects; owner-builder liable for statutory warranty breaches except for excluded defects; engineer not liable to plaintiffs; parties to agree draft orders giving effect to judgment; orders stood over for calculation and directions.

Orders

  • Stand proceedings over to listed date for directions.
  • Direct parties to negotiate and agree orders to give effect to reasons (save as to costs).