In The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301, the NSW Court of Appeal has considered whether the builder and developer of a building with alleged defects could successfully argue that liability for a breach of the duty of care in section 37 of the Design and Building Practitioners Act 2020 (NSW) (DBP Act) could be apportioned amongst nine independent contractors who were alleged to be concurrent wrongdoers under the Civil Liability Act 2002 (NSW) (CLA).


After considering the nature of the statutory duty in the DBP Act and its relationship with the CLA, the NSW Court of Appeal held that:

  • a claim based on breach of statutory duty under section 37 of DBP Act is one brought "in tort" because of the deeming phrase "as if the duty ... were established in common law" in section 37(3), and that such duty is "non-delegable" pursuant to section 39 of the DBP Act
  • because liability owed under statutory duty is a form of vicarious liability, it is not subject to the proportionate liability provisions of part 4 of the CLA. Consequently, the proportionate liability regime in the CLA had no application
  • the builder remained "vicariously liable for the breaches of concurrent wrongdoers"
  • therefore, while the builder was still entitled to a cross-claim against the concurrent wrongdoers, it could not rely upon the proportionate liability regime to defend or reduce its liability to the owners for breach of the statutory duty under section 37 of the DBP Act.


This decision has implications not just for parties to litigation, but also for those negotiating construction and (in particular) consultant contracts. However, treat with caution at this stage, given that a special leave application has been filed in the High Court and is pending determination to permit an appeal to the High Court.

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