The Owners - Strata Plan No 61288 v Brookfield Australia Investments Ltd [2013] NSWCA 317

The Owners - Strata Plan No 61288 v Brookfield Australia Investments Ltd [2013] NSWCA 317

A builder owes a duty of care to the owners corporation of a commercial strata development to exercise reasonable care in construction to avoid causing loss from latent defects in the common property vested in that corporation where such defects are structural, pose danger to persons or property, or make premises uninhabitable. This duty arises notwithstanding any contractual arrangements between other parties and is not negated by statutory provisions that do not expressly abrogate or limit such common law rights.

Jurisdiction
Australia
Judgment Date
25 September 2013
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
['negligence' 'duty of Care' 'pure Economic Loss' 'latent Defects' 'statutory Interpretation' 'liability of Builders' "duty to Owners' Corporations"]
['tort Law' 'building and Construction Law'] ['negligence' 'duty of Care' 'pure Economic Loss' 'latent Defects' 'statutory Interpretation' 'liability of Builders' "duty to Owners' Corporations"]

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether a builder owes a duty of care in negligence to an owners corporation for pure economic loss from latent defects in common property of a strata scheme comprising commercial premises' 'Whether the statutory scheme in the Home Building Act 1989 (NSW) precludes or limits a general law duty of care']

Ratio Decidendi

A builder owes a duty of care to the owners corporation of a commercial strata development to exercise reasonable care in construction to avoid causing loss from latent defects in the common property vested in that corporation where such defects are structural, pose danger to persons or property, or make premises uninhabitable. This duty arises notwithstanding any contractual arrangements between other parties and is not negated by statutory provisions that do not expressly abrogate or limit such common law rights.

Court Disposition

Appeal allowed

Orders

  • ['Appeal allowed and orders made in the Equity Division on 10 October 2012 set aside.' 'The first respondent owed the appellant a duty to exercise reasonable care in the construction of the building to avoid causing the appellant to suffer loss resulting from latent defects in the common property vested in the...