Click here to call us +61 2 9929 0226
Posted 20 August 2010
Category: Building Defects
Changes and counterbalancing measures for residential building defects claims
The case of Ace Woollahra Pty Ltd v The Owners – Strata Plan 61424 & Anor  NSWCA 101 provided that where a builder contracted with a non-land owning joint venturer the statutory warranties against the builder were displaced and left real questions on the ability to rely on the home warranty insurance.
The NSW Government responded with urgent changes by way of the Home Building Amendment (Warranties and Insurance) Act 2010 which in part allowed the right to claim against builders and insurers where the builder contracted with a non-land owning joint venturer.
Interestingly, the liability of a developer and joint venturer in the above situation is not clear. Also unclear is whether or not subcontractors are now liable under the amendments.
The case of Owners Corporation SP 72357 v Dasco Constructions Pty Limited & Ors  NSWSC 819 which followed the decision of The Owners Strata Plan v Brookfield Multiplex Limited  NSWSC 360 permitted the builder to argue its case that it was not liable for building defects to the extent that subcontractors could be found liable.
Interestingly, as a possible counterbalancing measure, the case of Aquagenics Pty Ltd v Break O’Day Council  TASFC 3 found that the builder could not rely on proportionate liability where the construction contract contained a provision that the builder was liable for its subcontractors.
There are still many issues to be resolved in relation to proportionate liability.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.