A bespoke up-to-date strata management agency agreement template and proposal, tailored for your firm!
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
A bespoke up-to-date BMC agency agreement template and proposal, tailored for your firm!
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
A bespoke contract to enable service charges direct to owners who want that special service that the committee does not wish to pay for.
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
A bespoke up-to-date community, precinct and neighbourhood agency agreement template and proposal, tailored for your firm!
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
Contract between a strata manager and a developer for pre-registration services.
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
A bespoke up-to-date building management agency agreement template and proposal, tailored for your firm.
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
A tailored by-law for your renovation works.
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
An agreement from the owners corporation to owners or occupants to supply amenities, such as, electric vehicle charging infrastructure, telecommunication services, window cleaning, garbage disposal and recycling services.
We collect your personal information for the purpose of delivering our services. By providing this information, you confirm that you have read and consent to the processing of your personal information in accordance with our Privacy Policy.
Click here to call us +61 2 9929 0226
Posted 06 April 2023
Category: Strata, Building Defects
The Design and Building Practitioners Act 2020 (D&BPA), which was famously the NSW Governmentās response to the increase in defective works for multi-level construction projects and class 2 building works was a game changer against responsible building contractors and developers escaping liability by introducing a retrospective duty of care. The legislation has recently been tested in the NSW Supreme Court.
Recent NSW Supreme Court decisions ofĀ Goodwin,Ā PafburnĀ andĀ Boulus ConstructionsĀ has provided some much needed clarity to everyone in the industry, from builders, engineers, insurers, lawyers and owners on how the D&BPA can be implemented.
Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624
The NSW Supreme Court has now confirmed that the definition of “building work” in section 4(1) of the D&BPA (which refers to only class 2 buildings) has no application to section 37 āDuty of Careā and can be applied broadly to include buildings such as boarding houses and commercial buildings.
The statutory duty of care in section 37 of the D&BPA is not limited to class 2 buildings, and is perhaps not even limited to residential building works under the Home Building Act 1989 (NSW) (āHBAā).
This decision also confirms that building practitioners can be found personally liable for damages under section 37. The project manager and supervisor of the building works was found to be a person who carried out construction work within the meaning of section 36 of the D&BPA.
It should be noted that the decision was appealed by the representative of the liquidated first defendant company, DSD, Mr Daniel Roberts.
As part of its judgment, the Supreme Court at first instance had also found that Mr Roberts was the true representative and supervisor of the works as carried out by DSD and was responsible for the damages.
The Court of Appeal dismissed Mr Robertsā appeal inĀ Roberts v Goodwin Street Developments Pty LtdĀ [2023] NSWCA 5, holding in effect that the D&BPA can be applied broadly:
As the primary judge notedĀ [the]Ā reference to ābuildingā [must be understood to refer] to the broad definition in the Environmental Planning and Assessment Act[.]Ā Merely because a boarding house is not a ādwellingā for the purposes of the Home Building Act does not have the effect, however, of taking a boarding house outside the scope of s 37. That is because the definition in s 36(1) of ābuilding workā is not an exhaustive definition. Rather, the reference to āresidential building workā within the meaning of the Home Building Act simply makes clear that such work constitutes ābuilding workā for the purposes of s 36(1). But there is room left for other work relating to a building to qualify as ābuilding workā.
Incidentally, whilst the Court of Appeal did not directly address this point, the very fact that the Court held that statutory duty of care applied clearly means that the so called ācorporate veilā is no impediment to bringing proceedings of this kind. It needs to be remembered that Mr Roberts was the husband of the director of DSD, but because of his conduct (e.g. attending all the meetings and supervising the works), he was effectively held out to be responsible for the damages caused by DSD, by default.
The Owners ā Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659
The NSW Supreme Court considered the question of who may be a āpersonā carrying out āconstruction workā for the purposes of the statutory duty of care in section 37 of the D&BPA. The definition of āconstruction workā under the D&BPA included subparagraphs which include:
The Court considered whether a developer fell within subparagraph (d) of the definition. The conclusion was that the use of the words āotherwise having substantial controlā pointed to a person having substantive control over the carrying out of building work even in circumstances where they chose not to exercise it. Those who possess the ability to wield āsubstantive controlā may owe the statutory duty under the D&BPA.
The Court found that it was not the intention of the D&BPA to exclude developers from owing a statutory duty of care and that a āpersonā who carried out āconstruction workā as defined under the D&BPA was not limited to builders and contractors.
A degree of separation from physically carrying out the work may not be sufficient to avoid liability and a duty of care under the D&BPA.
*Notation: the developer and builder had directors in common.*
Boulus Constructions Pty Ltd v Warrumbungle Shire Council [2022] NSWSC 1368
The long standing dispute between the builder and developer of a retirement community has recently been in the spotlight given Council sought to amend its Cross-Claim, Cross-Summons and Cross-Claim List Statement to include a claim under section 37 of the D&BPA against the Builder, as well as against the Managing Director of the Builder and the Project Site Supervisor who were not presently cross-defendants.
The Court was satisfied that the Council had brought their application timeously, bearing in mind the timing of the Builderās allegations of illegality, the fact that the cause of action under section 37 had only been available since June 2020.
More importantly, the Court having regard toĀ PafburnĀ stated that a person having substantive control over the carrying out of any work for the purposes of the definition ofĀ āconstruction workāĀ in the D&BPA.
Council pleaded that the Project Supervisor actively supervised, coordinated and project managed all of the primary elements of the building works comprising the project and the wide ranging interpretation of āpersonsā in section 37 of the D&BPA covered a director of a builder or an employee of a builder, being the Project Supervisor.
The imposition on company directors of the automatic duty under section 37 was poised to be contrary to the independence of a corporation from its directors and members. The Court reasoned that section 37 has any such consequence. The duty imposed on a director of the company who engages in āconstruction workā by section 37 is the same duty as is imposed on the company itself.
Conclusion
The recent NSW Supreme Court cases have provided clarity over:
The D&BPA is currently being tested in the Court but there still remains ambiguity in the interpretation of the D&BPA, for example the word āpersonsā is sometimes used in the D&BPA to mean a person deemed to be a āpractitionerā; and sometimes it is not.
Although, as Justice Stevenson states in Boulus Constructions, Parliament has taken care to define āpractitionerā and to define the various activities within that definition by reference to āpersonsā carrying out those activities, it has used the expression āpersonā in section 37(1). That must mean someone who is not necessarily a āpractitionerā and not necessarily a person acting in their capacity as a āpractitionerā; nor necessarily acting āin their own capacityā. As outlined in Pafburn, this will be a question of fact in each case.
The implications of this legislation are far reaching and the extent is continually evolving.Ā If you need help or advice please ask our team of experienced legal practitioners.
Related Articles
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.