The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWSC 116

The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWSC 116

The statutory duty imposed by s 37 of the Design and Building Practitioners Act 2020 (NSW) is non-delegable by operation of statute (s 39), but this does not bring the claim within s 5Q of the Civil Liability Act 2002 (NSW), which deals with non-delegable duties arising in tort. Therefore, the proportionate liability provisions of the Civil Liability Act do apply to such statutory duty claims, and the defendants are not precluded from raising a proportionate liability defence. The pleaded defence was not so manifestly groundless as to merit summary dismissal.

Jurisdiction
Australia
Judgment Date
23 February 2023
Procedural Posture
Building Defects Claim / Application for Summary Dismissal or Strike Out of Proportionate Liability Defence
Outcome
Application for strike out / summary dismissal dismissed.
Legal Topics
['proportionate Liability' 'non Delegable Duty' 'statutory Duty of Care' 'summary Dismissal' 'apportionable Claims']
['civil Procedure' 'torts' 'statutory Interpretation' 'building and Construction Law'] ['proportionate Liability' 'non Delegable Duty' 'statutory Duty of Care' 'summary Dismissal' 'apportionable Claims']

Case Brief

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Procedural Posture

Building Defects Claim / Application for Summary Dismissal or Strike Out of Proportionate Liability Defence

Legal Issues

  1. 1 ['Whether the proportionate liability provisions of the Civil Liability Act 2002 (NSW) apply to a claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW)' 'Whether ss 5Q and 39(a) of the Civil Liability Act preclude reliance on proportionate liability because the statutory duty is non-delegable' 'Whether the paragraphs of the defence disclosed a reasonable defence']

Ratio Decidendi

The statutory duty imposed by s 37 of the Design and Building Practitioners Act 2020 (NSW) is non-delegable by operation of statute (s 39), but this does not bring the claim within s 5Q of the Civil Liability Act 2002 (NSW), which deals with non-delegable duties arising in tort. Therefore, the proportionate liability provisions of the Civil Liability Act do apply to such statutory duty claims, and the defendants are not precluded from raising a proportionate liability defence. The pleaded defence was not so manifestly groundless as to merit summary dismissal.

Court Disposition

Application for strike out / summary dismissal dismissed.

Orders

  • ['Application to summarily dismiss or strike out the proportionate liability defence is dismissed.']