Joshua Bridgett’s Post

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.

The High Court has delivered its judgment in the appeal of Pafburn (The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301), providing clarity on critical questions surrounding the Design and Building Practitioners Act 2020 (NSW). Laura Reisz, Jonathan Newby, John Georgas and Sean Turner, examine the Court's findings on liability distribution under the DBP Act and the broader implications for those in the construction industry. Read more here: https://lnkd.in/eY5iWPCt

In a Massachusetts Appeal Court judgment, the court addressed whether the costs of repairing or removing construction defects fall under "damages because of... 'property damage'" within a contractor’s commercial general liability policy. The case involved significant construction defects, including improperly installed walls, missing structural elements, and water damage. The court ruled that commercial general liability policies cover physical damage resulting from construction defects, not the defects themselves. This ruling underscores that construction defects alone do not constitute "property damage" under these policies, highlighting the importance of understanding the scope of coverage in construction-related claims. Read more here: https://bit.ly/3X9hYUE

This is the latest of several important High Court decisions on the 10-year longstop limitation defence in the Building Act. The High Court struck out an alleged structural defect from an existing claim as time-barred even though the original proceeding was filed in time. The structural defect was added to an amended statement of claim filed in February 2023, approximately 18 years after the code compliance certificate for the works was issued and nearly ten years after the plaintiffs commenced the proceeding in October 2013. Becroft J held that time for limitation purposes does not stop running in relation to all latent defects when a proceeding is commenced.  The critical question is whether a new defect added to an existing claim after the 10-year period is, in substance, essentially different to those defects already pleaded. If so, it will be a fresh cause of action and time-barred. In this case, the alleged structural defect was essentially (or completely) different to the alleged weathertightness, fire protection and mechanical defects in the existing claim. As the Judge observed, “this conclusion may be seen as unfair to the plaintiffs”, however, “it would also be unfair to the [relevant defendants]” if the defect was not struck out as otherwise, 18 years after the last relevant act or omission, they “would have to meet a claim that would be near impossible to fully defend given the passage of time”. The decision reinforces the importance of two things: - For plaintiffs and potential plaintiffs, timely investigations to identify defects before the end of the latent defects period. - For defendants, careful review of new defects added to amended claims after the 10-year period, for limitation purposes. There is more detail in the attached article, including a link to Becroft J’s judgment. Thanks to William Turner and Charlene Fairnie for the content.

An important reminder for owners, developers, and general contractors seeking to cancel builders liens from title: sections 23 and 24 of the BC Builders Lien Act have distinct requirements for cancelling liens. Conflating those requirements may result in the court refusing to remove a lien from title to a property. Read the recent article from my colleague, Pavneet Grewal, and I to learn more. #construction #bcconstruction #buildersliens #liens #bclaw #canadianlaw

CLCA offers members 13 different landscape construction and maintenance contracts and legal forms, all reviewed by a construction law attorney to include terms and conditions specific to the landscape industry. Unlike many forms from national organizations, ours comply with California’s unique laws. These easy-to-use “fill-in-the-blank” PDFs make your job easier. Featured This Month: • Form 101: Residential Landscape Home Improvement Contract. Includes a force majeure clause, a “Five-Day Right to Cancel” form for contracting parties 65 years or older, and a “Three-Day Right to Cancel” form for contracting parties under 65. Pro-tip: Utilize CLCA’s no-cost Attorney On Retainer to ensure that desired alterations do not invalidate the contract. Stay legally safe and compliant! Visit https://lnkd.in/gEiwKUNs to become a member and access these essential legal forms today. #clca #californialandscapecontractorsassociation #connect #learn #grow

A recent decision of the BC Supreme Court highlights the importance to general contractors or owners in understanding sections 23 and 24 of the Builders Lien Act, which have distinct requirements for discharging liens. The Court emphasized that section 23 applications must be supported by clear, admissible evidence, as hearsay is insufficient, and clarified that deficiency set-offs cannot reduce the mandatory 10% statutory holdback. This article, written by Dan W. Melnick and Pavneet Grewal, can be read here: https://bit.ly/3VcYpcE                 #ConstructionLaw #BuildersLien #LegalUpdate #BCSupremeCourt

Today’s decision of the Court of Appeal in Victorian Building Authority v May 21 Pty Ltd & Ors [2024] VSCA 150 has significant implications for Victorian developers and building surveyors, particularly those involved in large scale and mixed use developments. Building surveyors in Victoria are required to estimate the cost of building works to calculate the building permit levy under the Building Act 1993. The Act requires surveyors to ‘have regard to’ the contract price, if one is specified. The VBA’s position was that where a contract price is specified, the surveyor must adopt that contract price as the estimate. The developer entities' position was that the words ‘having regard to’ meant that the contract price needs to be considered, but that other material could be taken into account (e.g. material that shows that the contract sum includes amounts for things that are not ‘building work’). This meant that the 'estimate' (on which the levy is calculated) could be different to, including less than, the contract price. The developers were successful in the earlier decision of Stynes J in the Supreme Court. In today’s decision, the Court of Appeal refused the VBA’s application for leave to appeal, and confirmed the Supreme Court's decision in favour of the developers. In practice, if surveyors have followed the VBA’s position, this decision means that there is a possibility that developers have been levied more than their statutory liability. Moray & Agnew acted on behalf of the developers in this proceeding. Gordon T. | James Lalios | Denise Serdenes The effect of this decision will vary substantially between projects, and developers and surveyors should seek legal advice about their rights and obligations under the Act. 

Julian Peake and Alex Haslam discuss the landmark High Court of Australia decision in Pafburn Pty Limited v the Owners – Strata Plan No. 84674 [2024] HCA 49. The Court upheld that developers and head contractors in NSW are 100% liable for any failure to take reasonable care in construction work, even if subcontracted. This decision reinforces the non-delegable duty of care under the Design and Building Practitioners Act 2020 (NSW), ensuring that liability cannot be reduced by apportioning it to subcontractors. This ruling aims to address the "crisis of confidence" in the safety and quality of residential buildings in NSW. https://hubs.la/Q02_x4c_0 #ListenEngageSolve

Recently, the Federal Court issued a significant ruling affecting the crafting of payment claims under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”). This ruling sets forth guidelines for citing contract clauses in adjudication proceedings, marking a crucial development in the construction industry's dispute resolution landscape. Let’s take a closer look for #CaseSpotlight ➡️ Read more at https://lnkd.in/dNUYXx5v #KeepingItBrief