Australia: Residential Focus - 23 March 2016

Last Updated: 28 March 2016
Article by Christine Jones and Jarrad McCarthy
Most Read Contributor in Australia, September 2017

The New South Wales Court of Appeal recently considered a personal injury claim where a pre-purchase inspection report provided the factual basis for the trial judge to find a breach of a duty of care to take precautions against the risk of injuries occurring due to a condition of the premises that the home owners knew or ought to have known was a foreseeable risk of injury.

The appellant home owners purchased a property after obtaining a pre-purchase report in 2002. The pre-purchase report did not identify the veranda or balustrade as an "Issue" or Safety Concern" however the report indicated that a number of design and maintenance problems with the balcony and balustrades existed. The report advised organising an inspection by an engineer and repairing or replacing some parts. The respondent, a guest of the home owners, suffered chest and spine injuries as a result of a glass panel in the balustrade giving way, and succeeded at first instance in the NSW District Court. After the incident the balustrade was replaced.

The home owners appealed the decision arguing that the trial judge erred in finding that the duty of care was breached as the posts of the structure had been repainted by a skilled painter and also inspected by a fencing contractor prior to the accident. Neither of these skilled workers had identified or notified the home owners of any damage to the balustrade. This evidence was rejected by the trial judge on credibility grounds. On appeal it was held that it was not open to the trial judge to dismiss evidence on grounds that were not raised by the parties.

The Court of Appeal had difficulty with the trial judge's formulation of the duty of care, as it defined the duty of care by reference to breach of duty rather than standard of care. At first instance the duty was stated to require the home owners to take precautions against the risk of injuries occurring due to a condition of the premises they knew, or ought to have known, was a foreseeable risk of injury. The trial judge did not consider the duty in respect of the entire pre-purchase report but rather directed his focus towards only the balustrade. On appeal, Hoeben JA summarised the appropriate duty of care owed by emphasising that "the duty of care should be at a high level of generality with amplification being by way of a statement of its content or scope".

The decision of the trial judge was overturned and the homeowners were found not to be liable. The Court of Appeal held that a prospective approach should be taken to the duty of care owed, by looking at the position of the appellants as purchasers who obtained a relevant pre-purchase report. In adopting this approach it was held that the home owners did not owe a duty to the respondent as it was unreasonable to expect them to refuse entry into their home until every recommendation in the report, which might foreseeably cause injury, had been complied with. The non-urgent response of the home owners to take action to repair the balustrade was reasonable as the foreseeability and probability of harm was minimal.

In the media

Strong new quality standards for solar products
An independent testing program is being introduced for solar panels and inverters to ensure that the actual performance of products being sold in Australia meets marketing claims. Products that are not up to standard will be removed from the CEC's list of approved products (11 March 2016)
Strong new quality standards for solar products

Carbon neutral buildings on the horizon
The nation's first carbon neutral city is one step closer, as the Australian Government expands the National Carbon Offset Standard to include buildings, precincts and cities has been welcomed by Australia's property and construction industry (08 March 2016). More...

Spike in Loose-fill Test Registrations Following Community Forums
A significant increase in registrations for free loose-fill asbestos sample testing has been recorded following two weeks of community forums across NSW. The deadline for free sample testing is August 1 2016 (11 March 2016). More...


Australian Bureau of Statistics
01/03/2016 - Building Approvals, Australia, Jan 2016 (cat no. 8731.0)

Practice and courts

Tradespeople and homeowners warned of immediate risks from Infinity electrical cables
The Infinity cables taskforce is distributing a bulletin to licensed electricians and builders throughout the country reminding them of their obligations under industry laws, and advising them about their potential liability if they fail to notify home owners and regulators

Further information is available at Infinity cable recall: act now before it's too late (02 March 2016). More...

RET statements
01 March 2016 - Seeking your views on proposed changes to the Register of solar water heater application processRET
01 March 2016 - Ultra Green Sun Solar brand products certification to AS/NZS 2712 cancelledRET

ABCB NCC Seminars 2016
The national seminars, running in February and March 2016 are presented by the ABCB and Standards Australia. These seminars will be held in each Australian capital city and will provide valuable information to building and plumbing practitioners on the changes included in the NCC 2016, which comes into effect on 1 May 2016. Visit the ABCB website.

Announcements, Draft Policies and Plans released 2015

BPB: Announcement of regulations applying to the sale of properties with swimming pools
Minister for Local Government Paul Toole has announced regulations applying to the sale of properties with swimming pools to take effect from 29 April 2016 (11 March 2016)
Announcement of regulations applying to the sale of properties with swimming pools

NSW: Summary of updated Codes and Guidelines released 1 March 2016
After a period of extensive consultation, the Exploration Code of Practice: Community Consultation has been released on 1 March.
Summary of updated Codes and Guidelines released 1 March 2016

NSW OSR: Duties and First Home Owner Grant Revenue Rulings
New Revenue Rulings published for duties and first home owner grant (02 March 2016)
Duties and First Home Owner Grant Revenue Rulings

PCA submission: Review of Security of Payment legislation
Fair Trading is conducting a full review of the Building and Construction Industry Security of Payment Act 1999 (the Act). The security of payment laws are designed to ensure that a person can receive payment under a construction contract for carrying out construction work or providing any goods and services related to that work. See the Property Council's submission here. (02 March 2016). More...


Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64
Civil and Administrative Tribunal – Expert Code of Conduct – status of Code – exclusion of expert evidence constituting a denial of natural justice Expert evidence – independence of expert – matter of weight, not admissibility. More...

Swift v Wearing-Smith [2016] NSWCA 38
TORT – negligence – guest falling from first floor verandah as a result of balustrade giving way – proceedings brought against owners of premises – content of duty of care – building inspection report obtained before purchase of property – extent to which owners were on notice of defect in balustrade before accident – extent to which owners should have been on notice of defect – whether response by owners reasonable – breach of duty and causation – appeal by owners allowed. More...

Florida Kitchens Centre Pty Ltd v Keith (No 2) [2016] NSWCATAP 61
APPEAL – Civil and Administrative Tribunal (NSW) – home building dispute – procedural orders about inspection of manufacturing facility – second appeal against procedural directions – previous directions in similar terms to orders sought to be appealed – principles for leave to appeal against procedural directions – leave refused COSTS – whether special circumstances – grounds established. More...

Agdiran v Owners Corporation SP83475 [2016] NSWCATAP 58
APPEAL - residential strata title development – claim for breaches of warranties under Home Building Act – grounds covering adequacy of reasons, procedural fairness and sufficiency of evidence – appeal dismissed APPLICATION FOR LEAVE TO APPEAL – similar grounds – application dismissed. More...

Iuliano v Commissioner for Fair Trading [2016] NSWCATOD 26
Home Building – Application for variation of contractor licence – Whether applicant has sufficient experience within the meaning of an instrument made by the respondent – Applicant has satisfied experience requirement. More...

Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56
Administrative Law – appeal from the Consumer and Commercial Division of the Tribunal – home building dispute – appeal by builder on errors of law – no errors found.
Appeal by homeowner – appeal lodged out of time – application for extension of time refused – substantial delay and no prospects of success on grounds of appeal relied on
Home Building Act 1989; Encroachment of Buildings Act 1922. More...

Strata Plan 79215 v Nazero Constructions Pty Ltd [2016] NSWSC 231
DAMAGES – contract – building – breach of statutory warranties in Home Building Act 1989 (NSW) – where judgment for liability entered with damages to be assessed – where defendant did not appear for assessment hearing – whether expert reports addressed defects the subject of liability judgment and reasonable costs of remedying those defects – no question of principle. More...

MSP Consulting and Building Constructions Pty Ltd v Karkoulas [2016] NSWCATAP 69
APPEAL – Civil and Administrative Tribunal (NSW) – home building claim – conditional stay of decision granted – stay lapsed due to failure to comply with condition – whether appeal as of right established – ground of appeal on apprehension of bias not established – whether leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) required – whether leave pursuant to clause 12 of schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) should be granted – leave to appeal refused – appeal dismissed. More...

Kay v 3D Design & Build Pty Ltd [2016] NSWCATAP 68
APPEAL – denial of procedural fairness – failure to give opportunity to respond to disputed evidence – determination of application at a directions hearing. More...

Agdiran v Owners Corporation SP83475 [2016] NSWCATAP 58
APPEAL - residential strata title development – claim for breaches of warranties under Home Building Act – grounds covering adequacy of reasons, procedural fairness and sufficiency of evidence – appeal dismissed
APPLICATION FOR LEAVE TO APPEAL – similar grounds – application dismissed. More...



Environmental Planning Instruments
State Environmental Planning Policy Amendment (Permissible Land Uses) 2016 (2016-127) — published LW 11 March 2016

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Christine Jones
Jarrad McCarthy
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