The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659

The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659

A person otherwise having substantive control over building work for s 36(1)(d) of the Design and Building Practitioners Act 2020 (NSW) is a person with the ability and power to control how the work is carried out, whether or not that control was actually exercised. The word person in s 37(1) is not to be read as excluding the owner of the land in relation to which the construction work is carried out; instead, s 37(2) is construed so that each owner does not include an owner that itself carried out the construction work. The defendants' construction argument that Madarina could not owe the statutory duty because it was the land owner was rejected.

Jurisdiction
Australia
Judgment Date
24 May 2022
Procedural Posture
Building and Construction Proceeding Alleging Breach of Statutory Duty of Care Under the Design and Building Practitioners Act 2020 (nsw) / Interlocutory Motions for Leave to File an Amended List Statement and for Dismissal or Strike Out
Outcome
The Court determined questions of statutory construction, rejected the defendants' submission that s 37(1) excludes an owner of the land, held that substantive control means ability to control how work is carried out, deferred further consideration of leave to amend, and required further attention to pleading...
Legal Topics
['design and Building Practitioners Act 2020 (nsw)' 'statutory Duty of Care for Construction Work' 'meaning of Construction Work' 'substantive Control Over Building Work' 'whether Owner of Land Can Be a Person Who Carries Out Construction Work' 'pleadings' 'scott Schedule' 'strike Out and Dismissal']
['building and Construction' 'civil Procedure' 'statutory Interpretation'] ['design and Building Practitioners Act 2020 (nsw)' 'statutory Duty of Care for Construction Work' 'meaning of Construction Work' 'substantive Control Over Building Work' 'whether Owner of Land Can Be a Person Who Carries Out Construction Work' 'pleadings' 'scott Schedule' 'strike Out and Dismissal']

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Procedural Posture

Building and Construction Proceeding Alleging Breach of Statutory Duty of Care Under the Design and Building Practitioners Act 2020 (nsw) / Interlocutory Motions for Leave to File an Amended List Statement and for Dismissal or Strike Out

Legal Issues

  1. 1 ['Whether leave to amend should be refused because the proposed Amended List Statement disclosed no reasonable cause of action against Madarina Pty Limited.' 'Whether, for the definition of construction work in s 36(1)(d) of the Design and Building Practitioners Act 2020 (NSW), substantive control requires actual exercise of control or only the ability and power to control how work is carried out.' "Whether the Scott Schedule adequately set out the plaintiff's claim against each defendant." 'Whether alleged new defects in the Scott Schedule introduced new causes of action.' 'Whether a person who carries out construction work in s 37(1) of the Design and Building Practitioners Act 2020 (NSW) can include the owner of the land in relation to which the construction work is carried out.']

Ratio Decidendi

A person otherwise having substantive control over building work for s 36(1)(d) of the Design and Building Practitioners Act 2020 (NSW) is a person with the ability and power to control how the work is carried out, whether or not that control was actually exercised. The word person in s 37(1) is not to be read as excluding the owner of the land in relation to which the construction work is carried out; instead, s 37(2) is construed so that each owner does not include an owner that itself carried out the construction work. The defendants' construction argument that Madarina could not owe the statutory duty because it was the land owner was rejected.

Court Disposition

The Court determined questions of statutory construction, rejected the defendants' submission that s 37(1) excludes an owner of the land, held that substantive control means ability to control how work is carried out, deferred further consideration of leave to amend, and required further attention to pleading...

Orders

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