BUILDING AND CONSTRUCTION — Design and Building Practitioners Act 2020 (NSW) — allegations of breach of s 37 in the course of constructing a house and in the course of performing remedial building work pursuant to an NCAT work order — whether breaches have been proven — assessment of damages — whether costs incurred in prior proceedings in NCAT can be claimed in these proceedings
Quick Take
1A cause of action under s 37 of the Design and Building Practitioners Act 2020 (NSW), which has retrospective effect by virtue of Schedule 1 clause 5, first accrues on the date the statute commences (10 June 2020), not when the underlying damage became apparent, and accordingly a limitation defence under s 14(1)(b) of the Limitation Act 1969 (NSW) fails where proceedings are commenced within six years of that commencement date.
2Consistent with Loulach Developments, a plaintiff alleging breach of the s 37 DBPA duty must identify the specific risk of harm, the precautions the defendant should have taken, and prove that economic loss resulted from the defendant's failure to take those precautions — it is insufficient merely to assert a defect and allege the builder should have prevented it.
3Legal costs and expert costs incurred in prior tribunal proceedings that were withdrawn by consent with no order as to costs cannot be recovered as a component of damages in subsequent proceedings, applying Anderson v Bowles and Avenhouse v Hornsby Shire Council.
