A party cannot raise on appeal a duty of care that was neither pleaded nor argued at trial, even where the scope of the duty is said to be implicit in submissions on breach. The correct test for causation in a pure economic loss claim arising from negligent pre-purchase inspection advice is whether the negligence was a necessary condition of the economic loss under s 5D of the Civil Liability Act 2002 (NSW), not whether the report caused the physical damage to the property. A building consultant's duty under a standard property inspection is measured by the Australian Standard (AS 4349.1-1995), not by the higher standard applicable to a special purpose defects report.
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