Commentary and case law from the Commercial Bar Association's finest.
The New South Wales Court of Appeal has refused leave to add a ground of appeal against a judgment that the director of a building company and his wife indemnify an insurer for over $1 million paid out to home owners, as the appeal point on which the appellants now sought to rely was not raised before the primary judge.
The High Court unanimously held that the builder of strata-titled apartments did not owe an owners corporation a duty of care to avoid pure economic loss caused by latent defects in common property.
The Victorian Court of Appeal has held that the 10 year limitation for commencing a building action in s. 134 of the Building Act 1993 (“Building Act”) is not confined to negligence claims, but also applies to actions founded in contract. The Court of Appeal also held that, on the facts of the case, no duty of care was owed by the building surveyor to the owner to prevent the type of loss suffered by the owner.
A recent illustration of the stringency of the usual undertaking as to damages for a party who obtains an interlocutory injunction, where the injunction is later discharged and the proceeding lost.
After a 2 year review and consultation process, the Victorian government has introduced to parliament the most significant changes to the building industry since the Building Act in 1993 and the Domestic Building Contracts Act in 1995. Anyone practising in this area must be aware of these fundamental changes.
The fourth installment of the litigation involving an apartment complex in Chatswood. and the question whether a builder may owe a common law duty of care in a residential setting.
In Hooper v Metricon Homes, a house was built on a poorly built slab and foundation, causing the house to exhibit serious movement. The Tribunal awarded damages for demolition and rebuilding of the house.
The NSW Security of Payment Act provides that an adjudication certificate may be filed in court as a judgment for a debt and may be enforced accordingly. A party argued that this enforcement regime, which does not allow judicial scrutiny of the debt, conflicts with federal law and is unlawful. By a 2-1 majority, the Full Court of the Federal Court found no conflict.
A claimant in an expert determination challenged an interlocutory decision of the expert to refuse the claimant leave to amend its claim. After discussing the nature and purpose of expert determination, and construing the contract between the parties and the expert, the Court held that the expert did not err.
This is the second case note of two cases in which subsequent owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. In determining whether the owners had suffered loss, the Tribunal considered whether the owners had constructive knowledge of ‘reasonably observable’ defects, also introducing the concept of the ‘untrained eye’.
This is the first case note of two cases in which owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. The Tribunal considered the issue of whether knowledge by the purchasers of the defects prior to purchase affected their claims.