197 WALKER STREET NORTH SYDNEY

BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties under s 18B of Home Building Act 1989 (NSW) — Whether building work complied with Building Code of Australia (BCA) — Where under BCA different standards relating to waterproofing exists depending on correct classification of given room as ‘habitable’ or ‘non-habitable’ — Meaning of ‘habitable’ under the BCA NEGLIGENCE — Duty of care — Non-delegable duty — Whether claim for breach of statutory duty under s 37 of Design and Building Practitioners Act 2020 (NSW) (DBPA) is apportionable under Part 4 of Civil Liability Act 2002 (NSW) where there has been no delegation of works to third parties — Consideration of Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 and The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301 NEGLIGENCE — Defences — Contributory negligence — Whether defence of contributory negligence applicable to breach of statutory duty under s 37 DPBA — Whether defence made out on the facts

APPEAL – leave to appeal – interlocutory order refusing to strike out defence – defence pleaded plaintiff’s claim apportionable – issue of general public importance – significant impact on course of trial TORT – duty of care – statutory duty for construction work – extension of duty to subsequent owners of land – duty non-delegable – whether claim is apportionable under Pt 4 of Civil Liability Act 2002 (NSW) – claim by owners corporation for defective works – Design and Building Practitioners Act 2020 (NSW), s 37(1) WORDS AND PHRASES – “non-delegable duty – “tort” – “vicarious liability”

CIVIL LIABILITY ACT — owners corporation sues builder and developer for building defects — breach of statutory duty imposed by s 37 Design and Building Practitioners Act — non-delegable duty by reason of s 39 Design and Building Practitioners Act — proportionate liability — apportionable claims — whether ss 5Q, 39(a) Civil Liability Act operate such that claim is not apportionable.