Colin Biggers & Paisley’s Post

Some certainty up the chain, though how courts will now view proportionate liability defences for sub-contractors / down the contractual chain remains to be seen. Expect multi-party disputes to involve a matrix of proportionate liability defences and cross-claims for some time yet!

A recent High Court decision has determined that proportionate liability defences are not available to developers or builders for claims against them for breach of the duty of care under section 37 of the Design and Building Practitioners Act 2020 (DBP Act). Partners Charu Stevenson and James Clohesy, and special counsel Chris Knight, break down the decision, share their insights, and explore the implications for developers, builders and construction professionals moving forward. Read the article here: https://lnkd.in/gQJe76CA #highcourtdecision #construction #builders #defects #liability

The case of Trusted Building Group Pty Ltd v Everitt involved a construction contract dispute where the Court ruled in favour of the defendants, striking out the builder's claim and entering summary judgment for the owners on their Cross-Claim for defective works, with damages assessment to be determined later. Read more about "Fail to Prepare (or Turn Up) & You Prepare to Fail" with David Collins here: https://lnkd.in/gkXdnjew #Buildingandconstruction #Contractdispute #Terminationofcontract

It's not enough to say it was someone else.   Today's High Court judgment in Pafburn Pty Limited v The Owners - Strata Plan No 84674 upholds the Court of Appeal's earlier judgment that a claim under the Design and Building Practitioners Act by a body corporate against a developer/builder is not apportionable to downstream subbies.   This means that for head contractors facing liability under the DBPA for defective building work, it's no longer enough to claim that if things were defective, someone else should bear the brunt of it. This stands to make the lives and litigation of owners easier and a builder's defense that much harder.

Our summary of Pafburn. Unfortunately there is still no certainty for consultants and their insurers on whether their proportionate liability defences to claims for breach of the D&BPA Duty can be maintained. Hopefully this is resolved soon by amendments to the D&BPA or a case that provides a better vehicle for HCA consideration of the issue for consultants.

CONSTRUCTION CASE NOTE | The High Court of Australia has ruled that proportionate liability defences are not available for breaches of the statutory duty of care under the Design and Building Practitioners Act 2020 (NSW), at least for builders and developers. But where does this leave professional building consultants? It seems that cross-claims will still be required until the question is answered by the Courts or legislature with certainty. Experts Elizabeth Brookes, Marco Giallonardo and Annie Weng, have been monitoring the progress of the Pafburn case closely and they examine the High Court decision and its implications in more detail here: https://lnkd.in/gx4akBBm

Thanks for providing this update Olivia Nichol clarifying the status of collateral warranties. Come and talk to the Construction Team at Thomson Snell & Passmore LLP for more information!

Too long has our government allowed dodgy and inexperienced workmanship to take place with new mid and high level density construction. I have seen numerous investors and owners lives flipped on their head due to crippling defects not being attended to with the most common being water ingress causing inhabitation of a property and flammable cladding. Countless times have builders gone into liquidation only to mysteriously appear months later under a different company name relinquishing themselves of all responsibility for previous constructions and contracts. The government are well aware of who these operators are with a lengthy list of VCAT and DBDRV submissions, harsher penalties need to be applied to protect investors and homeowners across the board. We need more housing desperately and the housing being built needs to last longer than the 10 year warranty period that’s slapped on it. Anytime the state and federal governments would like to step in and start regulating necessary parts of the construction industry the better.

Post Hackett, the golden thread & standards in building generally etc, the circus seems to be still well and truly on road! Is it now time in addition to enforced demolitions as is likely to be the outcome here for civil prosecutions against (ref. CDM2015) Principle Contractors? for the misery and stress they bring the neighbouring communities? #cdm #clients #building #planning #contractors #principlecontractors #hackett #labc

And...we have an answer. Earlier today, the High Court handed down the much anticipated judgment in Pafburn Pty Limited v The Owners - Strata Plan No 84674 [2024] HCA 49. The High Court was required to consider the extent to which a developer or head building contractor can rely on the failure of another person to take reasonable care in carrying out construction work, or otherwise performing functions in relation to that work, to limit their liability under Pt 4 of the Civil Liability Act 2002 (NSW) ("the CLA") (i.e., proportionate liability), when faced with a claim for contravention of the statutory duty imposed by the Design and Building Practitioners Act 2020 (NSW) ("the DBPA"). By "slim majority" (4:3), the High Court held that neither a developer nor a head building contractor could do so. More to follow.