THE DESIGN AND BUILDING PRACTITIONERS ACT 2020 (NSW): AN ADDITIONAL STATUTORY DUTY OF CARE
On 11 June 2020, Part 4 of the Design and Building Practitioners Act 2020 (NSW) (the Act) commenced which imposed a new statutory duty of care regime on a person who carries out “construction work” on a residential property.
Q: What is this Duty of Care?
Part 4 of the Act requires anyone who carries out construction work on a residential property to exercise reasonable care to avoid economic loss caused by defects:
- in or related to a residential building for which the work is done; and
- arising from the construction work.
Q: Who benefits from the duty of care?
The duty of care is owed to each owner of the land and to each subsequent owner of the land. The person to whom the duty of care is owed will be entitled to damages (or compensation) for the breach of that duty.
Q: What is included as “construction work” under the Act?
Apart from the actual construction of the building itself (including alterations and additions to a building), “construction work” within the meaning of the Act also includes:
- preparation of designs for building work, for example by an architect;
- manufacture or supply of building products that are used for building work;
- supervising, coordinating, project managing or substantially controlling the carrying out of anything listed in this paragraph.
The introduction of this duty of care means that owner/s of residential properties now have legal avenues against building practitioners (not just Builders and Developers) including project managers, building product suppliers and consultants such as engineers and architects for defective designs or defects in building products. You can of course continue to go after the builder or the developer under the Home Building Act 1989 (NSW).
Q: How does this new duty of care tie in with the existing statutory warranties under the Home Building Act 1989 (NSW)?
This new duty of care does not limit the duties, statutory warranties or other obligations imposed by the Home Building Act 1989 (NSW) but operates in addition to them.
Q: Is this duty of care only for buildings constructed after 11 June 2020?
No, this duty of care applies retrospectively.
The duty of care extends to construction work carried out before the commencement of the duty of care provisions, namely where the economic loss caused by a breach of the duty of care:
- first became apparent within 10 years immediately before 11 June 2020; or
- the loss first becomes apparent on or after 11 June 2020.
Therefore, if you are currently involved in proceedings in which the duty of care may apply, you may be entitled to amend your claim to include this new duty of care.
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