The Owners - Strata Plan No 61288 v Brookfield Australia Investments Ltd

[2013] NSWCA 317

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Pure economic loss
4. › Duty of care
5. › Builder's liability to subsequent owner
6. › Latent defects in commercial building
7. › Whether builder owed duty of care to owners' corporation for latent defects in common property
8. › Vulnerability as necessary element
9. › Scope of duty limited to structural defects, danger to persons or property, or uninhabitability
1. Torts
2. › Negligence
3. › Pure economic loss
4. › Vulnerability
5. › Owners' corporation as creature of statute
6. › No ability to negotiate terms of acquisition of common property
7. › Whether owners' corporation vulnerable in relevant sense
8. › Whether ability to negotiate contractual protection must be proved
1. Building and Construction
2. › Builder's duty to subsequent owner
3. › Latent defects in common property
4. › Duty to owners' corporation of commercial premises
5. › Whether duty extends beyond residential dwellings
6. › No bright line between dwellings and other buildings
7. › Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16
1. Statutory Interpretation
2. › Home Building Act 1989 (NSW)
3. › Scope of statutory warranties
4. › Whether exclusion of serviced apartments from Part 2C precludes common law duty of care
5. › Whether delegated legislation can be used to construe statute
6. › Home Building Act 1989 (NSW), ss 3, 18A, 18B, 18C, 18D, 18G
7. › Home Building Regulation 1997 (NSW), cll 5, 6

Quick Take

A builder of a commercial building owes a duty of care to the owners' corporation to exercise reasonable care to avoid latent defects in common property that are structural, constitute a danger to persons or property, or make the premises uninhabitable. The duty extends beyond residential dwellings. The owners' corporation need not prove it could not have bargained for contractual protection. The exclusion of serviced apartments from statutory warranties under the Home Building Act 1989 (NSW) does not preclude a common law duty of care. The scope of the tortious duty is narrower than the builder's contractual obligations to the developer.