AUSTRALIAN CONSTRUCTION LAW NEWSLETTER ISSUE #150 MAY/JUNE 2013

AUSTRALIAN CONSTRUCTION LAW NEWSLETTER ISSUE #150 MAY/JUNE 2013

NEGLIGENCE BUYER BEWARE? THE CURRENT AUSTRALIAN POSITION ON THE LIABILITY THAT A CONTRACTOR OWES TO A SUBSEQUENT OWNER OF A BUILDING Jaclyn Smith, Paralegal Corrs Chambers Westgarth, Melbourne INTRODUCTION The liability that a contractor owes to a subsequent owner of a building is a grey area of the law. A line is drawn between commercial and residential buildings, with the latter still occupying a specially favoured placed in Australian jurisprudence. 1 Disputes concerning residential buildings have upheld the principle in Bryan v Maloney 2 that a contractor can be liable to a subsequent owner for pure economic loss caused by defective construction or design, 3 yet no corresponding duty exists where commercial buildings are concerned. The judicial consensus, and the position suggested by this author, is that this principle should only be extended by the High Court of Australia or the legislature. 4 As will be demonstrated, the doctrine of privity 5 of contract restricts the type of claims that a subsequent owner can initiate, though this may be overcome as the use of building information modelling (BIM) diversifies the liability landscape. PRIVITY OF CONTRACT There is not always a contractual connection between a building owner and the entity designing the building. Under a design and construct contract, the head contractor takes on the risk and responsibility of the design, and as a consequence this is generally financially accounted for in the contract price under most Australian standard form contracts. For example, clause 2.2(a) of AS4902 2000 specifically shifts the risks associated with the project s design on to the contractor, and this increased risk would be a key consideration taken into account when the contractor is tendering for a project. Subsequent owners cannot recover from design professional for design defects because there is no contractual nexus, and it would be inequitable to suggest that they be able to recover under a contract that they were not a party to and did not provide any consideration for. OVERCOMING PRIVITY ISSUES While there is no cut and dried answer 6 to whether or not subsequent owners are owed a duty in respect of design liability, there is no legal principle preventing them recovering from subcontractors with which they have no direct contractual relationship. 7 In such circumstances, the existence of the duty is ascertained by examining the relationship of the parties and the vulnerability of the building owner. 8 As such, the tort of negligence has been actively pursued as a means to legally connect parties where a contract does not exist. There is extensive case law and scholarship surrounding the tortious relationship between designers, builders and subsequent owners and a few recent cases will be examined later in this paper. 9 CLAIMS AGAINST SUBCONTRACTORS Gunston v Lawley 10 is authority in Victoria for subsequent owners being able to recover for defective design from subcontractors, but does not directly establish a duty of care as no such duty found to exist on the facts. The subsequent owners (Lawley) encountered several defects in the house they had purchased, including cracking in the walls. 11 It is of worth to note the incredibly complex way in which Lawley had to initiate proceedings against: the builder as first respondent; a director of the builder as second respondent; the architectural draftsman as third respondent; the builder s domestic building insurer was subsequently joined as a fourth respondent, the 50 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013

soil engineer and the building surveyor were joined as fifth and sixth respondents respectively; and the structural engineer was joined by the soil engineer but due to a paucity in the claim this party was not pursued. 12 The fourth respondent paid the limit of the domestic builders insurance cover to Lawley prior to the initial Victorian Civil and Administrative Tribunal hearing so had no further interest in the proceeding. 13 Consequently the builder lost its interest in the proceeding. 14 Lawley was successful at the tribunal in claiming against the builder, the architectural draftsman and the building surveyor and it is only the architect who appealed the finding against it. 15 The claim was for alleged breaches of the duty of care that the architect owed to them as subsequent owners. 16 The court, and the tribunal before it, placed great emphasis on the fact that the architectural draftsman was a registered building practitioner required to perform his or her work as a building practitioner in a competent manner and to a professional standard. 17 It is strong obiter that building practitioners owe a duty to their client and third parties in some situations. 18 In examining the position of the architectural draftsperson, the court and tribunal both likened the factual situation in Bryan v Maloney and Woolcock 19 with Lawley s circumstances. 20 Byrne J commented that in both instances the High Court of Australia looked at whether a duty of care was owed to the original owner as an anterior consideration to the subsequent owner being able to establish its claim. 21 Byrne J stressed that this assessment of whether a duty of care existed was not to be considered in a vacuum and the fact that the architectural draftsman was in a very close relationship with the original owner was important in assessing its vulnerability. 22 His Honour held that the original owner had the ability to protect itself by contract from the consequences of the architectural draftsman s defective work. 23 Of importance also was the fact that the original owner was a developer so would not be able to assert that it was vulnerable or reliant upon the subcontractor because of its extensive construction and commercial experience. 24 In situations where a contractor is taking responsibility for the works, his Honour found that an owner s reliance upon the work of a particular subcontractor is considerably diminished. 25 While only obiter, this could be an issue for subsequent owners making a claim against a subcontractor where the original owner of their domestic building was a developer. By the same reasoning, it strengthens the claimant s position where the building was originally owned by a layperson. REASONS AGAINST EXTENDING LIABILITY Extending the liability a contractor owes to a subsequent owner would overbalance the risk allocation under the head contract. 26 Under a design and construct contract, such as AS4902 2000, the contractor already carries a significant portion of the project risk. 27 Extending the liability has been likened to imposing an additional warranty 28 and affording greater avenues of recovery compared to those available to an original owner who is limited by contractual obligations such as certificates of practical completion and a defects liability period. 29 It has also been criticised for opening the contractor up to an indeterminate liability period that could commence many years after construction is completed. 30 This then complicates how the contractor s work is assessed when standards of reasonableness change over time. 31 The direction contained in clause 29.4 of AS4902 2000 also demonstrates why the liability should not be extended. It directs that defective works can be accepted at the election of the owner, and are classified as a deemed variation under the contract. 32 The acceptance of the defect is part of the head contract, and privity issues aside, is information that a subsequent owner might not actually be aware of. There could have been a financial arrangement between the parties, such as a reduction in the contract price, in exchange for the acceptance of the defect. It would not be equitable to allow a subsequent owner to have a great right of recovery against a builder, when the contractor has already come to a contractual understanding with the original owner. Similarly, John Dorter and John Sharkey note that the designer s duty to review the design of a building is an ongoing, as opposed to a continuing, duty that subsists until practical completion. 33 A subsequent owner should not have a higher duty owed to them than is owed to the original owner by a design professional. If a design professional is only liable to review their design up until the time of practical completion, a subsequent owner should not then have recourse after this time. Any extension of the duty owed in this regard would need to be pre dated by an extension of the design professional s duty to the original owner. An extension could open contractors up to multiple claims when the defect reaches different degrees of damage, and as AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013 51

ownership passes to subsequent owners each could potentially make claims for fresh damage. 34 Extending the liability owed could also tend to discourage purchasers from seeking expert assistance when inspecting the property if they know they have the ability to bring action against the contractor for defects regardless. 35 The extensive opposition to any extensions of the liability attest to it being unreasonable for reform to take place outside of the High Court of Australia or legislature. THE POSITION UNDER COMMON LAW The current position in Australia is that a subsequent owner of a residential building can recover for pure economic loss from a contractor for defective construction. 36 The cases below will demonstrate that this basic principle has been developed particularly where residential buildings are concerned, but has seen its greatest challenges in cases that have unsuccessfully attempted to extend the liability to apply to commercial buildings. BRYAN V MALONEY 37 This seminal case firmly established the liability owed by a contractor to a subsequent owner for pure economic loss caused by defective construction of a dwelling houses. 38 The case concerned inadequate footings that the builder (Bryan) had constructed, for the contracted owner, of a home dwelling. These footings as installed began showing signs of structural damage, only evident after possession had passed to the subsequent owner. While it was not a determinative factor in the judgment, it is worth noting that Maloney was the second subsequent owner, and she was still able to recover from the contractor for pure economic loss. THE MAJORITY JUDGMENT In establishing the duty, the majority judgment likened the relationship between the contractor and the subsequent owner in respect of the pure economic loss suffered as having a comparable degree of proximity to the relationship of the contractor and the original owner. 39 While there was no consequent duty of care from either relationship, 40 it was held that the relationship between a professional builder of a house and a subsequent owner possesses the requisite degree of proximity to give rise to a duty of care. 41 The connecting link between the contractor and subsequent owner is the house itself as it is a permanent structure to be used indefinitely. 42 Mason CJ, Deane and Gaudron JJ found it would be foreseeable to a contractor that negligent construction is likely to cause economic loss to the owner of the house at the time that the damage manifests. 43 In the absence of any intervening acts 44 to break the connection between the contractor and the subsequent owner, this proximity between the contractor s breach of its duty of care and the economic loss suffered is unextinguished by either lapse of time or change of ownership. 45 The reasoning of the majority judgment focuses on the initial fact that the contractor should competently complete works as designed or face liability. This treats the changes in ownership of a house as incidental to the initial existence of liability that the contractor owes. While there is still a proximity requirement between contractor and subsequent owner, it does not pre date an initial liability owed by the contractor. 46 The distinction between residential and commercial buildings has been described as a critical ingredient of majority judgment, 47 even though the phrase dwelling house, is not as straight forward a category as their Honours may have first envisaged. 48 The phrase has been applied to strata developments in recent cases, already testing the boundaries of the judgment. 49 BRENNAN J IN DISSENT Brennan J did not find a duty of care to exist in this instance and held that using proximity as a criterion for extending a tortious duty of care in novel situations without any definition of the evaluating criteria will not provide any certainty of analysis in subsequent cases. 50 His Honour expressed that: it would be anomalous to have claims relating to the condition of the building by an original owner against the builder determined by the law of contract if the relief claimed by the remote purchaser against the builder would be determined by the law of tort. Such a situation would expose the builder to a liability for pure economic loss different from that which he undertook in constructing the building and would confer a corresponding right on the remote purchaser which the purchaser had not sought to acquire from the builder of a transmissible warranty of quality. 51 The concerns that his Honour articulates validly question why the commercial and legal certainty of a contractual agreement should be compromised by an overarching tortious obligation. Contractors under design and construct contracts are already assuming a lion s share of the design risk, so adding further tortious obligations on top of the existing contractual warranties is tipping the balance too far over to the contractor. FANGROVE PTY LTD V TOD GROUP HOLDINGS PTY LTD 52 This case was an unsuccessful challenge to extend the principle in Bryan v Maloney to apply to commercial buildings and also 52 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013

to works that were potentially dangerous, above being simply defective. The engineer had a negligence claim brought against it for its part in the design of a parapet for a commercial building. 53 The subsequent owner was unsuccessful in claiming that the engineer owed a duty of care in the design of the building to avoid potentially dangerous defects. The court found that Bryan v Maloney did not apply in this instance and had been incorrectly applied in this matter at first instance, because this matter involved a commercial building as well as the absence of reliance or an assumption of responsibility. 54 The requisite degree of proximity was lacking and de Jersey CJ expressly refused to accept that the parties relationship was proximate by virtue of the dangerous nature of the defects. 55 His Honour commented that Bryan v Maloney was an extension of the law for recovery of pure economic loss and that any further extension should be initiated by the High Court. 56 His Honour noted that the policy considerations surrounding this reform were multifarious and that extending the duty any further would involve the court adopting an unduly legislative role. 57 This is consistent with the views expressed in the majority judgments in Woolcock Street Investments and encompasses just how complex any extension to the duty of care would be. 58 WOOLCOCK STREET INVESTMENTS PTY LTD V CDG PTY LTD 59 The Queensland Court of Appeal here rejected an attempt to extend the principle in Bryan v Maloney to apply to purchasers of commercial buildings. 60 The court indicated that any change to the position in Bryan v Maloney would need to be undertaken by the High Court or the legislature, 61 following several failed attempts to extend its protective arm to commercial buildings. 62 Similar to the defect in Bryan v Maloney, the defect in this dispute was substantial structural distress caused by the settlement of foundations or material below the foundations. 63 Counsel for the subsequent owner claimed that the approaches taken in cases such as Perre v Apand Ptd Ltd 64 and Hill v van Erp 65 justified an incremental extension of the Bryan v Maloney principle because they extended recovery for pure economic loss arising from negligence in a commercial setting. 66 Counsel further contended that the principle should be extended to allow subsequent owners of commercial buildings that have been negligently designed or built under the negligent supervision of engineers to be able to recover for their loss. 67 Thomas JA held that the scope of such a duty should depend on the totality of the circumstances 68 and rejected the notion that Perre v Apand provided any clear basis for an expansive view of claims for pure economic loss. 69 This is not the only case that has unsuccessfully attempted to extend the liability owed to a subsequent owner, there are Victorian 70 and New South Wales 71 authorities that similarly refused to extend the principle in Bryan v Maloney. ZUMPANO V MONTAGNESE 72 While this case predates Lawley, it complicates the issue raised there in finding that whether or not a duty of care is owed can depend on whether the original owner was a layperson or a developer. In Zumpano, the original owner was a builder who sold the home they had built as a builder s own home. 73 In the context of Lawley, it would be questionable which category this situation would fit into. They would unlikely be on the same footing as a layperson because they possess a professional skill in building homes, but may not be as commercially adept as a developer. If a case with similar facts were to come before the Victorian Supreme Court today it would be interesting to what extent the judgment in Lawley would be able to handle a situation such as this for establishing a duty owed to subsequent purchasers. Brooking JA responds to this idea in His judgment, commenting that the practical importance of Bryan v Maloney is reduced by the extensive warranties implied by the Domestic Building Contracts and Tribunal Act 1995 (Vic). 74 His Honour notes that the co existence of these statutory warranties alongside a common law duty of care might not be appropriate because, for policy reasons, the statutory regime should point against a duty of care existing. 75 PROPRIETORS UNITS PLAN NO 95/38 V JINIESS PTY LTD 76 This case involved unit owners in a development bringing an action against the engineer for structural defects in the design of the building causing pure economic loss. Riley J followed the ratio in Bryan v Maloney and held that to find a duty of care in such claims for pure economic loss required the subsequent owners to have relied upon the engineer and for the engineer to have such assumed responsibility. 77 His Honour rejected the argument that Bryan v Maloney should be limited to its facts. 78 The building in this instance was not a stand alone house, but Riley J found the complex of residential units as within the category of dwelling houses. 79 In making this observation, his Honour found it difficult to see why the commercial AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013 53

units in the building could not also come under the scope of Bryan v Maloney. 80 While the claim against the engineer ultimately failed for reasons pertaining to proximity and forseeability, the obiter comments of Riley J provide an interesting opportunity for claimants in buildings containing both residential and commercial aspects. OWNERS CORPORATION STRATA PLAN 61288 V BROOKFIELD MULTIPLEX 81 The Owners Corporation owned a strata development that had been built by Brookfield under a design and construct contract with the developer. 82 This places the Owners Corporation in a similar situation to a subsequent owner in the sense that they did not have privity of contract with Brookfield. 83 The defect in question was the common property of the apartment development, and the Owners Corporation sought rectification costs based upon the alleged duty of care. 84 His Honour ultimately found that Brookfield did not owe a duty of care to the Owners Corporation. 85 One issue with the claim was that the content of the duty had not been asserted at any stage in the pleadings. 86 What instead was pleaded was the reasoning as to why a duty should be owed, 87 but his Honour inferred that the duty that the Owners Corporation were alleging was to ensure that the building was designed and built with reasonable care, so that it would be fit for the purpose. 88 Counsel for the Owners Corporation alleged that the duty of care was to take reasonable care to avoid a reasonably foreseeable economic loss to the plaintiff in having to make good the consequences of latent defects caused by the building s defective design and/or construction. 89 OWNERS CORPORATION STRATA PLAN 72535 V BROOKFIELD 90 This case was an unsuccessful attempt to extend the duty to subsequent owners where there is an alleged breach of statutory warranties. 91 It establishes that neither builders nor developers will owe a common law duty of care to subsequent owners where statutory warranties are implied. 92 McDougall J held that the owners in this instance had the benefit of statutory warranties under the Home Building Act 1989 (NSW) and should not have had any greater duty of care in their favour over these. 93 In relation to domestic buildings contractors bear a duty to take reasonable care to avoid causing pure economic loss to subsequent building owners. 94 However, a subsequent owner s ability to recover through a negligence claim is now constrained by the operation of domestic building legislation. 95 Elizabeth Hunt and Kathy Ge have read this decision as a judicial willingness to preserve agreements negotiated between commercial parties of equal standing as the rationale for a common law duty not being found in the case. 96 Further, Hunt and Ge note that courts may be increasingly reluctant to offer special protection where domestic building legislation affords a measure of assistance to the claimant. 97 Identifying this potential double dipping of recovery serves as a due reminder of the legal anomalies that could be created if the liability owed to subsequent owners is extended. INTERNATIONAL PERSPECTIVES While the international experience of claims made by subsequent owners against contractors has expanded, there is no general trend toward further extension apparent in the other common law countries. 98 In New Zealand attention has recently been drawn to the particular problem faced with leaky building syndrome. 99 This syndrome encapsulates failings in design, inadequate provision for ventilation, the use of unsuitable or inadequate building materials and the adoption of flawed building techniques which in various combinations allow water to leak into and rot the structure of a building. 100 The sheer volume of litigious actions caused by this syndrome has created difficulties in assessing the liability of the various parties involved when a claim is made. 101 This litigious complexity serves as a warning to the Australian building and construction industry of what can eventuate when liability is extended without clear party delineations being established. If the liability owed to a subsequent owner were to be extended beyond the parameters established in Bryan v Maloney, it would be essential to establish which party is liable to who and for how long. The New Zealand Court of Appeal held, back in 1977, that a contractor who constructed a house with inadequate foundations owed a duty of care to a subsequent purchaser of that building. 102 This case is relevant to the current discussion despite being focussed on the building aspect because it examined whether a duty of care was owed by a contractor to all subsequent purchasers of the building. 103 It does not limit the liability owed only to those with a contractual nexus to the designer, and thus overcomes the difficulty that is faced in the Australian context due to privity of contract. The United Kingdom has displayed a reluctance to extend the design obligations owed by an architect to a contracted owner beyond the date for practical completion, 54 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013

which indicates an unlikely outlook for giving a subsequent owner any avenues of recovery for design defect. 104 In New Islington and Hackney Housing Association v Pollard Thomas and Edwards Limited, 105 neither the building contract nor the architect s conditions of engagement created an obligation for the architect to review his design after practical completion had been reached, nor was there a power to order variations after this date. 106 However, the judgment of Dyson J provides guidance for circumstances in which it could be necessary for an architect to be obligated to review its design. His Honour states that an architect will not be under a duty to review his design of the foundations where there is no express contractual provision unless something makes it necessary, or at least prudent, for a reasonably competent architect to do so. 107 Specific examples given by his Honour include where building foundations causes distress to the building, where a publication suggests a building material that he had specified was not fit for its intended purpose, or if he learns that the design is dangerous. 108 While this case has been noted to have been decided largely on its facts, 109 it can still be argued that Dyson J allows some scope for an architect to have an ongoing design obligation. 110 In Linklaters Business Services v Sir Robert McAlpine Ltd and Others 111 the dispute concerned insulation work that was sub subcontracted to be installed by the fifth defendant, Southern, who knew that any material defects in its insulation work would, or could well, go undetected and, in terms of corrosion, would not cause significant corrosion for some years. 112 While a general extension of the liability owed to subsequent owners might be overbalancing the risk allocation in favour of subsequent owners, the idea of including an onus of liability upon latent design defects that are reasonably foreseeable to a competent design professional might be within reach of reform. THE ROLE OF DESIGN CONSULTANTS The use of design consultants as part of a design and construct contract is another important deliverable of the contractor. 113 The cost and lack of professional liability insurance available for design consultants is noted as a reason why building owners are so keen to novate the obligations of the design consultant on to their contractor alongside a fitness for purpose clause in the contract. 114 For risk allocation this means that the contractor carries a greater burden for the design risk on a project despite not being the party that can best bear this. If a design is defective the contractor is responsible to the building owner (and potentially the subsequent owner for home dwellings) for any design defects that become evident. This is not dissimilar from the other design related risks that the contractor assumes under a design and construct contract, particularly if the contractor has not selected the subcontractors personally and is accepting a novation when a project has commenced. 115 As will be discussed later in this paper with the advent of BIM on construction projects, if liability is to be extended to subsequent owners it is perhaps not a burden that should be carried by the contractor, but instead be moved to the party responsible for the actual design work. BIM & DESIGN LIABILITY While the use of BIM on Australian construction projects is still in its infancy compared with the level at which it is utilised on international construction projects, 116 particularly in Hong Kong, the US and the UK, 117 the impact it will have on design obligations is at best uncertain. What can be inferred from its use internationally is that it is here to stay 118 and that it alters the legal landscape at all levels of project participation 119 from design through to end of project liability. David Levin QC recently outlined the importance for Australian lawyers to embrace BIM and to learn the language, understand the concepts, consider the implications and assist in the implementation of BIM solutions. 120 Among the practical implications for using BIM on a major project, that Levin identified, were the implications for using the dataset produced by BIM across the life of an asset. 121 Levin explains the expression BIM dataset to be all of the inputs used by all of the parties involved in the project representing the as constructed project. 122 Relevantly, Levin comments that this dataset can be contractually passed on to any new owner purchasing the building. 123 The contractual passing on of the BIM dataset could give a subsequent owner the privity of contract that they would otherwise lack. Similarly, Levin identifies a minefield of legal issues that could arise if BIM is not handled appropriately by lawyers. 124 A report published by the Australian Institute of Architects made a similar observation in that the legal and contractual requirements have not yet developed to reflect the collaborative potential of BIM. 125 Relevant to this discussion is the potential for legal liability to exist where errors have been embedded in the BIM dataset. 126 Levin queries whether insurance can adequately handle the risk to the current and future owners of a building for errors caused by parties inputting into the BIM dataset, and which of these parties AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013 55

would be responsible for any liability were it to exist. 127 On a practical level, this translates to confusion as to whom a subsequent owner would bring a claim against in the event that a design defect was discovered. Would liability fall on to the individual party, such as the architect, or would it be a shared burden by all parties that contributed to the BIM dataset? These questions attest to the very real plea that Levin makes for construction lawyers to start understanding the language and issues that BIM adds into the already complex mix of a construction project. CONCLUSION It is a strongly held view that the principle in Bryan v Maloney should not be extended to apply to commercial buildings. Many of the cases discussed in this paper have noted that any further extension to the liability a builder owes to a subsequent owner needs to come in the form of legislative change or ratio from the High Court of Australia. The consequences are too far reaching and the variables too unknown for any court lower in the hierarchy to attempt to encompass the parameters of such an extended liability. One upcoming justification for extending the duty of care owed to a subsequent owner is the increased use of BIM. The potential for BIM to impact design liability necessitate further discussion as to the way that lawyers working within the industry should manage it. Levin s BIM dataset has the potential to drastically reduce design related defects as well as increasing the standard of design on both commercial and residential projects. It can be contractually passed on to subsequent owners with title changes to the building. The necessity to account for this sufficiently within the contract documentation is paramount, and it would be commercially and legally sound to prepare the construction industry for the advent of BIM before reactive measures need to adopted on an ad hoc basis. REFERENCES 1. Fangrove Pty Ltd v Todd Group 236, 242 (McPherson J) 2. Bryan v Maloney (1995) 182 CLR 609 3. Bryan v Maloney (1995) 182 CLR 609 4. Woolcock Street Investments 88; Fangrove Pty Ltd v Todd Group 236 5. Lawbook, The Laws of Australia (at 1 July 2012) 7 Contract: General Principle, 7.3 Parties [7.3.950] 6. Gunston v Lawley (2008) 20 VR 33 (Byrne J), 43 7. Gunston v Lawley (2008) 20 VR 33, 41 (Byrne J) 8. Gunston v Lawley (2008) 20 VR 33, 42 (Byrne J) 9. See, e.g. W D Duncan, Liability for defective premises in Queensland (1990) 11 Queensland Lawyer 127; Disa Sim, Expanding tort claims in construction cases: Time to contract? (2003) 11 Tort Law Review 38; Ian Duncan Wallace, Tort and defective buildings: A suggested rationale (2000) Building and Construction Law 7; Patrick Mead, The impact of contract upon tortious liability of construction professionals (1998) Torts Law Journal 1; Elizabeth Hunt and Kathy Ge, Negligence and subsequent owners A commonsense common law development? (2012) 24 Australian Construction Law Bulletin (8) 126 10. (2008) 20 VR 33 11. Gunston v Lawley (2008) 20 VR 33, 36 (Byrne J) 12. Gunston v Lawley (2008) 20 VR 33, 36 (Byrne J) 13. Gunston v Lawley (2008) 20 VR 33, 36 (Byrne J) 14. Gunston v Lawley (2008) 20 VR 33, 36 (Byrne J) 15. Gunston v Lawley (2008) 20 VR 33, 36 (Byrne J) 16. Gunston v Lawley (2008) 20 VR 33, 37 (Byrne J) 17. Gunston v Lawley (2008) 20 VR 33, 37 (Byrne J) 18. Gunston v Lawley (2008) 20 VR 33, 39 (Byrne J) 19. Woolcock Street Investments 88 20. Gunston v Lawley (2008) 20 VR 33, 40 (Byrne J) 21. Gunston v Lawley (2008) 20 VR 33, 40 (Byrne J) 22. Gunston v Lawley (2008) 20 VR 33, 41 (Byrne J) 23. Gunston v Lawley (2008) 20 VR 33, 42 (Byrne J) 24. Gunston v Lawley (2008) 20 VR 33, 43 (Byrne J) 25. Gunston v Lawley (2008) 20 VR 33, 42 (Byrne J) 26. Donald Charrett and Dan Washington, Contracts for design services (2012) Inhouse Counsel 293, 293 27. AS4902 2000 General conditions of contract for design and construct, Standards Australia, clause 2.2 28. Bryan v Maloney (1995) 182 CLR 609, 611 29. Bryan v Maloney (1995) 182 CLR 609, 611 30. Bryan v Maloney (1995) 182 CLR 609, 612 31. Bryan v Maloney (1995) 182 CLR 609, 612 56 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013

32. AS4902 2000 General conditions of contract for design and construct, Standards Australia, Cl 29.4 33. John Dorter and John Sharkey, Building and Construction Contracts in Australia at [11.40] 34. Bryan v Maloney (1995) 182 CLR 609, 612 35. Bryan v Maloney (1995) 182 CLR 609, 612 36. Bryan v Maloney (1995) 182 CLR 609 37. (1995) 182 CLR 609 38. Bryan v Maloney (1995) 182 CLR 609 (Mason CJ, Deane, Toohey 39. Bryan v Maloney (1995) 182 CLR 609, 609 (Mason CJ, Deane, Toohey 40. Bryan v Maloney (1995) 182 CLR 609, 619 (Mason CJ, Deane 41. Bryan v Maloney (1995) 182 CLR 609, 625 (Mason CJ, Deane 42. Bryan v Maloney (1995) 182 CLR 609, 625 (Mason CJ, Deane 43. Bryan v Maloney (1995) 182 CLR 609, 625 (Mason CJ, Deane 44. See, e.g. R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1995) 11 BCL 74 45. Bryan v Maloney (1995) 182 CLR 609, 625 (Mason CJ, Deane 46. Bryan v Maloney (1995) 182 CLR 609, 627 (Mason CJ, Deane 47. Woolcock Street Investments 88, [5] and [8](McMurdo P) 48. Zumpano v Montagnese [1997] 2 VR 525, 528 529 (Brooking JA) 49. See, e.g. Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219; Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712 50. Bryan v Maloney (1995) 182 CLR 609, 610 (Brennan J) 51. Bryan v Maloney (1995) 182 CLR 609, 644 (Brennan J) 52. [1999] 2 Qd R 236 53. Fangrove Pty Ltd v Todd Group 236, 236 (de Jersey CJ) 54. Fangrove Pty Ltd v Todd Group 236, 238 (de Jersey CJ) 55. Fangrove Pty Ltd v Todd Group 236, 239 (de Jersey CJ) 56. Fangrove Pty Ltd v Todd Group 236, 241(de Jersey CJ) 57. Fangrove Pty Ltd v Todd Group 236, 241 (de Jersey CJ) 58. Woolcock Street Investments 88 59. [2002] QCA 88 60. Woolcock Street Investments 88 61. Woolcock Street Investments 88, [8] (McMurdo P) 62. W D Duncan, Builders liability to subsequent prchasers of commercial buildings (2003) The Queensland Lawyer (23) 108, 108 63. Woolcock Street Investments 88, [14] (Thomas JA) 64. (1999) 198 CLR 180 65. (1997) 188 CLR 159 66. Woolcock Street Investments 88, [3] (McMurdo P) 67. Woolcock Street Investments 88, [3] (McMurdo P) 68. Woolcock Street Investments 88, [18] (Thomas JA) 69. Woolcock Street Investments 88, [22] (Thomas JA) 70. Zumpano v Montagnese [1997] 2 VR 525 71. Woolahra Municipal Council v Sved (1996) 40 NSWLR 101 72. [1997] 2 VR 525 73. Zumpano v Montagnese [1997] 2 VR 525, 525 (Brooking JA) 74. Zumpano v Montagnese [1997] 2 VR 525, 527 (Brooking JA) 75. Zumpano v Montagnese [1997] 2 VR 525, 527 (Brooking JA) 76. [2000] NTSC 89 (Riley J) 77. Proprietors Units Plan No 95/38 v Jiniess Pty Ltd [2000] NTSC 89, [25] (Riley J) 78. Proprietors Units Plan No 95/38 v Jiniess Pty Ltd [2000] NTSC 89, [46] (Riley J) 79. Proprietors Units Plan No 95/38 v Jiniess Pty Ltd [2000] NTSC 89, [53] (Riley J) 80. Proprietors Units Plan No 95/38 v Jiniess Pty Ltd [2000] NTSC 89, [55] (Riley J) 81. [2012] NSWSC 1219 82. Owners Corporation Strata Plan NSWSC 1219, [1] (McDougall J) 83. Owners Corporation Strata Plan NSWSC 1219, [9] (McDougall J) 84. Owners Corporation Strata Plan NSWSC 1219, [2] (McDougall J) 85. Owners Corporation Strata Plan NSWSC 1219, [4] (McDougall J) 86. Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219, [11] [12] (McDougall J) AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013 57

87. Owners Corporation Strata Plan NSWSC 1219, [12] (McDougall J) 88. Owners Corporation Strata Plan NSWSC 1219, [17] (McDougall J) 89. Owners Corporation Strata Plan NSWSC 1219, [18] (McDougall J) 90. [2012] NSWSC 712 91. Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712 92. Brendan Hoffman and Herjit Saini, Home Building Act update: No duty of care owed by builders and developers when statutory warranties apply, (2012) 24 Australian Construction Law Bulletin 7, 113, 114 93. Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712, [36] (McDougall J) 94. Bryan v Maloney (1995) 182 CLR 609 95. Elizabeth Hunt and Kathy Ge, Negligence and subsequent owners A commonsense common law development? (2012) 24 Australian Construction Law Bulletin (8) 126, 126. 96. Hunt and Ge, above n 95, 127 97. Ibid 98. Woolcock Street Investments 88, [25] (Thomas JA). 99. Stephen Todd, Difficulties with leaky building syndrome (2012) 20 Tort Law Review 19, 19 100. Ibid 101. Ibid 102. Todd, above n 99, 20 103. Bowen and Anor v Paramount Builders (Hamilton) Ltd and Anor [1977] 1 NZLR 394, 394 104. New Islington and Hackney Limited [2001] BLR 74 (Dyson J) 105. [2001] BLR 74 106. New Islington and Hackney Limited [2001] BLR 74, 75 6 107. New Islington and Hackney Limited [2001] BLR 74, 79 108. New Islington and Hackney Limited [2001] BLR 74, 79 109. New Islington and Hackney Limited [2001] BLR 74, 75 110. New Islington and Hackney Limited [2001] BLR 74, 79 111. [2010] EWHC 2931 (TCC) 108 112. Linklaters Business Services v Sir Robert McAlpine Ltd and Other [2010] EWHC 2931 (TCC) 108, 108 (Arkenhead J). 113. Matthew Frazer, Design and construct design certification and performance based design specifications (January 2013) Norton Rose Australia <http://www. nortonrose.com/au/knowledge/ publications/74542/design and construct design certification and performance based design specifications> 114. Patrick Mead, Evaluating the role of the insurance industry in determining risk allocation in major projects, (2006) 21 Australian Insurance Law Bulletin (9) 137, 137 115. Patrick Mead, Treatment options for risks in construction, civil and mining projects, (2007) 18 Australian Construction Law Bulletin (10) 117, 118 116. Although it has been described as having become a significant part of the Australian building and engineering industries: Australian Institute of Architects, BIM in Australia 2010 Report, (December 2010) <http:// www.architecture.com.au> 117. Lindsay Prehn and Nick Crennan, Building Information Modelling A new phases for the construction industry in Australia (24 January 2012) <http://www. cbp.com.au/publications/building Information Modelling a new phase for t> 118. David Levin BIM do lawyers need to care (2012) 24 Australian Construction Law Bulletin (9) 130, 133 119. Prehn and Crennan, above n 117 120. Levin, above n 118, 131 121. Levin, above n 118, 130 122. Ibid 123. Levin, above n 118, 131 124. Ibid 125. Australian Institute of Architects, BIM in Australia 2010 Report, (Dec 2010), 6 <http://www. architecture.com.au/i cms?pa ge=1.13262.13289.13527.14980> 126. Levin, above n 118, 131 127. Ibid Jaclyn Smith s article is based upon a paper which received a Commendation in the Student Division of the 2013 Brooking Prize offered by the Society of Construction Law Australia and which was originally prepared for the Melbourne Law Masters subject Design and Construct Contracting. 58 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #150 MAY/JUNE 2013