A builder of a commercial strata title development (such as serviced apartments excluded from the Home Building Act 1989 (NSW)) does not owe a common law duty of care to the owners corporation to avoid economic loss from defective construction, at least where the builder and developer negotiated their contractual rights at arm's length. The alleged duty is novel and its imposition is a matter for appellate courts or Parliament, not a first instance judge. The legislature's deliberate exclusion of commercial accommodation from the Home Building Act regime is a factor weighing against the imposition of a parallel common law duty.
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