Jing Zhi Wong - Builders, Construction & Engineering

Wong on Civil Liability

Builders, Construction & Engineering Liability in Australia

Work-in-progress, 12 August 2024

[A2] Economic Loss - Duty of Care:

[A2.1] Statement of Principles: succinctly set out in Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17, [133]. Key point of vulnerability: Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2021] QSC 74, [316]-[327]; San Sebastian Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340, 355.

[A2.2] General Principles - Builder/Registered Proprietor (incl. successors-in-title): see Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; Bryan v Maloney (1995) 182 CLR 609; Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5, [196] (Kirk JA and Griffiths AJA); Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35, [398]-[391].

[A2.3] Architect/visitor to building: Voli v Inglewood Shire Council (1963) 110 CLR 74.

[A2.4] Principal Contractor/Sub-subcontractor: Courts have recognized the difficulty in identifying the relevant principles applicable (maybe because of the remoteness or lack of proximity in the web of relationships): see TNT Australia Pty Ltd v CMW Design & Constructions Pty Ltd [2003] VSC 339, [25]; Line of authorities in Australia recognizing such a duty of care in this type of relationship appear to have been premised on the House of Lord's proposition in Junior Books v Veitchi Co Ltd [1983] 1 AC 520 (House of Lords) that "a common law duty of care may be created by a relationship proximity that would not have arisen but for a contract": see Brown v Brown (Federal Court of Australia, VG 797 of 1995, unreported); BC9600876 at 9-10 (Ryan, Heerey and Sackville JJ); Since Perre v Apand (1999) 198 CLR 180 the concept of "proximity" replaced with "vulnerability", but this appears not to be settled: see Valleyfield Pty Ltd v Primac Ltd [2002] QSC 80, [66]. Case law in Australia have recognised the duty of care in this type of relationships (or similarly equivalent situations): Eg, Latrobe Valley Village Inc v CSR Ltd and Monier Lid (Supreme Court of Victoria, 26 June 1990, J H Phillips J); TNT Australia Pty Ltd v CMW Design & Constructions Pty Ltd [2003] VSC 339, [19]; Though, no "cut and dried" answer as to whether duty of care arises in every relationship within this category - depends on the identity and position of the parties: see especially, Gunston v Lawley [2008] VSC 97, [27]-[28]; Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348, [34]. Vulnerability to losses caused by the defendant's conduct as well as reliance on skill, experience and expertise, are some key factors: see Gunston v Lawley [2008] VSC 97, [32]-[34]; TNT Australia Pty Ltd v CMW Design & Constructions Pty Ltd [2003] VSC 339, [25] ("the contention that the reasonable foreseeability of loss by the negligence of a mere supplier of labour for the purpose of concreting ... withot more, give rise to a duty of care owed to such proprietor by the party supplying that labour to a contractor or subcontractor is dubious, but cannot be said to be utterly hopeless"); . Cases that set out the some of the relevant factors and criteria for establishing the duty of care (non exhaustive): Valleyfield Pty Ltd v Primac Ltd [2002] QSC 80, [66] (Cullinane J); Gunston v Lawley [2008] VSC 97, [27]-[34]; Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348, [34]; Junior Books v Veitchi Co Ltd [1983] 1 AC 520 (see list of factors set out in Lord Roskill's opinion).

[A2.5] Defective Design - negligently advised, designed and supervised the foundations of a building which subsequently showed signs of damage: Query, National Mutual Life Association of Australasia Limited v Coffey & Partners Pty Ltd (QSC, 3 October 1989, No 767 of 1983, unreported); [1991] 2 Qd R 401. Patrick Mead, 'Defective Structures and the Construction Financier's Remedy in Tort' (1996) (46) Australian Construction Law Newsletter 20; Sutherland Shire Council v Heyman (1985) 157 CLR 424 (coment on Lord Wilberforce's classification).

[B] Australian Consumer Law

[B1] Misleading and Deceptive Conduct:

[B1.1] in the Construction Context:

[B1.1.1] M+DC arising from Design Certificate: see Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 (note, Court dd not decide on this point. parties accepted) - aff'd by High Court (special leave to appeal refused): "This application raises no arguable error of principle. Accordingly, special leave should be refused.": Australian Consulting Engineers Pty Ltd v Mistrina Pty Ltd (in liq) [2021] HCASL 52. See also, The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova [2021] NSWSC 150 [493]; Stav Investments Pty Ltd v Taylor; LK Group Investments Pty Ltd v Taylor [2022] NSWSC 208, [531].

[B1.1.2] M+DC not established from completion letter: see Robt Jones v First Abbott (1997) 14 BCL 282; BC9705777.