The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301

The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301

A claim for breach of the statutory duty of care under s 37 of the Design and Building Practitioners Act is to be treated as a claim in tort, attracting the operation of s 5Q of the Civil Liability Act, meaning the defendant respondent's liability is vicarious and not limited by the proportionate liability regime in Part 4. The statutory non-delegable duty regime thus prevents apportionment under Part 4; the builder/developer remains liable for the whole of the loss.

Parties
Appellant: The Owners – Strata Plan No 84674; First Respondent: Pafburn Pty Limited; Second Respondent: Madarina Pty Limited
Jurisdiction
Australia
Judgment Date
13 December 2023
Procedural Posture
Appeal / Court of Appeal on Leave Against Interlocutory Judgment Refusing to Strike Out Defence in Equity Division
Outcome
Appeal allowed; orders of Equity Division set aside; paragraphs of defence struck out; costs ordered in favour of appellant in both courts.
Legal Topics
Non Delegable Duty, Statutory Duty of Care, Proportionate Liability, Vicarious Liability
Tort Law Building and Construction Law Statutory Interpretation Non Delegable Duty Statutory Duty of Care Proportionate Liability Vicarious Liability

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Parties

The Owners – Strata Plan No 84674

Appellant

Pafburn Pty Limited

First Respondent

Madarina Pty Limited

Second Respondent

Procedural Posture

Appeal / Court of Appeal on Leave Against Interlocutory Judgment Refusing to Strike Out Defence in Equity Division

Legal Issues

  1. 1 Whether breach of non-delegable duty under s 37 Design and Building Practitioners Act 2020 (NSW) is a 'tort' for the purposes of s 5Q Civil Liability Act 2002 (NSW)
  2. 2 Whether proportionate liability provisions in Part 4 Civil Liability Act 2002 (NSW) apply to statutory non-delegable duty claims

Ratio Decidendi

A claim for breach of the statutory duty of care under s 37 of the Design and Building Practitioners Act is to be treated as a claim in tort, attracting the operation of s 5Q of the Civil Liability Act, meaning the defendant respondent's liability is vicarious and not limited by the proportionate liability regime in Part 4. The statutory non-delegable duty regime thus prevents apportionment under Part 4; the builder/developer remains liable for the whole of the loss.

Court Disposition

Appeal allowed; orders of Equity Division set aside; paragraphs of defence struck out; costs ordered in favour of appellant in both courts.

Orders

  • Grant the appellant leave to appeal from the judgment in the Equity Division given on 23 February 2023.
  • Allow the appeal and set aside the orders in the Equity Division.