\t\t\t\tOn 8 October 2014, the High Court handed down its decision in Brookfield Multiplex Ltd v Owners\u00a0Corporation Strata Plan 61288 & Anor [2014] HCA 36 which has serious implications for apartment\u00a0owners in the ACT.<\/p>\n
The case involved a long-running dispute between the appellant builder, Brookfield, and the\u00a0respondent owners corporation with respect to building defects in the common property of a\u00a0commercial building, being The Mantra Chatswood Hotel, a serviced apartment business.<\/p>\n
The Court adopted the case-by-case approach prescribed by previous judgments in this area and\u00a0held that the builder did not, in these circumstances, owe the owners corporation a duty of care to\u00a0exercise reasonable care in the construction of the building to avoid causing the owners corporation\u00a0economic loss resulting from latent defects in the common property.<\/p>\n
There were two questions that the Court answered in coming to its ruling: firstly, whether the builder\u00a0owed a duty of care to the developer and, secondly, whether the builder owed a duty of care to the\u00a0owners corporation independently of any duty of care to the developer.<\/p>\n
With regards to the first question, the Court held that the developer, who originally contracted with\u00a0the builder, sufficiently protected itself and was not \u2018vulnerable\u2019 to the builder\u2019s conduct in the legal\u00a0sense (vulnerability being a legal requirement for a duty of care to exist).<\/p>\n
The Court pointed out that the contract between the builder and the developer contained numerous\u00a0stringent clauses holding the builder accountable for building defects. It stated that, to supplement\u00a0the contractual provisions with a duty of care towards the developer would inappropriately alter the\u00a0allocation of risk effected by the parties\u2019 contract. Therefore, there was no duty of care. And, if no\u00a0duty of care was owed to the developer, it would be difficult to argue that a duty of care should flow\u00a0to a subsequent owners corporation as a subsequent owner. \u00a0That is, the subsequent owner should not hold greater rights than the original owner, being the developer.<\/p>\n
In relation to the second question, the Court held that the builder did not owe a duty of care to the\u00a0owners corporation independently of its obligations to the developer. As the owners corporation did\u00a0not exist at the time the defective work was carried out, there could not have been any reliance by\u00a0the owners corporation upon the builder. Furthermore, the Court held that the owners corporation\u00a0did not suffer any loss because it acquired the common property without any outlay on its part.<\/p>\n
Consistent with its case-by-case approach, the Court distinguished this case from the previous case\u00a0of Bryan v Maloney (1995) 182 CLR 609 where a subsequent owner successfully argued that a\u00a0builder of a residential house was liable for economic loss arising from building defects. The Court\u00a0held that the contractual protections provided to the original owner and subsequent purchaser in\u00a0Bryan v Maloney were far less than those offered in the current case and consequently, a duty of\u00a0care arose in Bryan v Maloney.<\/p>\n
However, the Court also made it clear that it was inappropriate to use the mere nature of the purchase (i.e. whether it was a commercial or residential property) as the decisive factor in determining whether a duty of care exists. Rather, the salient features of the relationship between the builder and the owners corporation, including whether the builder owed the developer a relevant duty of care, must be considered.<\/p>\n
The main practical outcome for residential apartment owners is that it will be generally much more\u00a0difficult for them to succeed when suing builders in negligence for building defects in lot or common\u00a0property. In particular, owners corporations will need advisors to carefully analyse the contracts\u00a0relating to the development, construction and conveyance of apartments to determine the precise\u00a0level of contractual protection afforded to the relevant parties. Indeed, it is fortunate that the Court\u00a0left it open that such matters must be decided on a case-by-case basis, rather than set out a blanket\u00a0rule that builders do not ever owe a duty of care to owners corporations.<\/p>\n
Finally, owners will now have to rely more heavily on state and territorial government statutory\u00a0warranty regimes and act rapidly to not fall foul of limitation periods. Unfortunately, these statutory\u00a0warranty regimes tend to be more limited in scope than negligence.\u00a0In the ACT, the statutory\u00a0warranties under the Building Act 2004 do not apply to buildings over 3 storeys and, consequently,\u00a0owners of apartments in larger buildings will either need to argue that their situation falls into a\u00a0category where a duty of care exists, or alternatively, find some other non-tortious cause of action to\u00a0rely upon.<\/p>\n
Authors: Christopher Kerin & James Qian<\/p>\n
E:\u00a0christopher@kerinbensonlawyers.com.au<\/a>\u00a0&\u00a0james@kerinbensonlawyers.com.au<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":" On 8 October 2014, the High Court handed down its decision in Brookfield Multiplex Ltd v Owners\u00a0Corporation Strata Plan 61288 & Anor [2014] HCA 36 which has serious implications for apartment\u00a0owners in the ACT. The case involved a long-running dispute between the appellant builder, Brookfield, and the\u00a0respondent owners corporation with respect to building defects in […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[53,54,25],"tags":[23],"class_list":["post-486","post","type-post","status-publish","format-standard","hentry","category-act","category-building-defects-act","category-legal-alert","tag-building-defects"],"_links":{"self":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/486","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/comments?post=486"}],"version-history":[{"count":0,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/486\/revisions"}],"wp:attachment":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/media?parent=486"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/categories?post=486"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/tags?post=486"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}