The Design and Building Practitioners Act 2020 (NSW)

If you’re a homeowner in New South Wales, you may have heard of the Design and Building Practitioners Act 2020 (NSW). This new law was introduced to address some of the issues that have arisen in the building and construction industry in recent years, including defects in new buildings and non-compliance with building standards.

Here are some key things to know about the Design and Building Practitioners Act 2020 (NSW):

  1. The law aims to improve the quality of buildings and ensure that they are safe and compliant with building standards.
  2. It requires that all building practitioners, including architects, engineers, builders, and certifiers, meet certain standards of competence. 
  3. It also establishes a new duty of care for building practitioners to ensure that their work is done in a proper and professional manner and that it complies with all relevant laws and standards.
  4. If a building practitioner breaches their duty of care or other obligations under the law, they may be liable for damages. 

Overall, the Design and Building Practitioners Act 2020 (NSW) is a significant development in the regulation of the building and construction industry in New South Wales. As a homeowner, it is important to be aware of these changes and to ensure that any building work you undertake is done by registered and competent practitioners who comply with all relevant laws and standards.

Related content: Unravelling the NCAT’s Landmark Decision: Design and Building Practitioners Act

The Issues in the Boulus Constructions Case

On 10 August 2017, Boulus Constructions entered into a construction contract with the Council. The builder was to construct retirement units, a community centre and a learning centre. 

In the Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368 case, there were several issues that arose under the Design and Building Practitioners Act 2020 (NSW). 

Here are some key issues that homeowners should be aware of:

  • Application of the Act: The Act may extend to supervisors, coordinators, project managers and others who have substantive control over any of the work.
  • The Council’s Amendment of its Cross-Claim: The Council sought leave to amend its Cross-Claim to include a claim against the Builder for a breach of duty under section 37 of the Act.
  • Costs: The court ordered that the Council pay the Builder’s costs thrown away by the proposed amendment and that the parties provide submissions regarding additional costs that may arise.
  • Home Building Act: Owners have further rights under the Act, in addition to the primary residential construction legislation, the Home Building Act (1989)(NSW)

The Court's Findings

In the Boulus Constructions case, the Court was tasked with interpreting and applying the statutory duty of care under section 37 of the Design and Building Practitioners Act 2020 (NSW). The case considered whether the managing director and project site supervisor of Boulus Constructions were “persons” within the meaning of section 37 and therefore owed a statutory duty of care.

The Court found that:

  • Section 37 imposes a duty of care on “a person who carries out construction work” to exercise reasonable care to avoid economic loss caused by defects.
  • “Construction work” includes building work, preparing designs for building work, manufacturing or supplying building products, and supervising or coordinating construction work.
  • The term “person” in section 37 should be read broadly to include individual persons such as the managing director and project site supervisor of a company.
  • The proportionate liability regime applies to actions for breach of duty under section 37.
  • The amendments sought by the Council to include the managing director and site supervisor as concurrent wrongdoers were allowed.
  • This decision clarifies that individual persons involved in the construction industry may be held personally liable for breach of the statutory duty of care under section 37. Homeowners should be aware of the potential for personal liability when engaging with construction companies and ensure that they receive proper advice on their rights and options in the event of defects arising.

What Homeowners Can Learn from the Boulus Constructions Case

The Boulus Constructions case highlights some important points for homeowners to consider before commencing construction work.

Below are some of the key takeaways from the case:

  • The importance of engaging qualified and experienced professionals: Homeowners should engage only licensed and experienced practitioners for their building projects. This includes architects, engineers, builders, and project managers.
  • The need for a thorough contract: A comprehensive contract between the homeowner and the practitioner should be in place before construction work begins. The contract should cover the scope of work, timelines, and costs, among other things.
  • The importance of complying with statutory duties: Practitioners must comply with their statutory duties under the Design and Building Practitioners Act 2020 (NSW). Homeowners should ensure that the practitioners they engage are aware of and comply with their duties.
  • The importance of being aware of potential defects: Homeowners should be vigilant in identifying and reporting any defects in their building projects to their practitioners as soon as possible. This can help avoid potential economic loss caused by defects.
  • The potential for legal action: Homeowners should be aware that they may have legal recourse if their building project is not carried out with reasonable care and skill, and they suffer economic loss as a result.

By following these key takeaways from the Boulus Constructions case, homeowners can help ensure that their building projects are carried out with reasonable care and skill, and avoid potential economic loss caused by defects.

Related Content: Lessons Learned from the Boulus Constructions Case for Sydney Homeowners

Conclusion

In conclusion, the Boulus Constructions case serves as a reminder to homeowners of their rights under the Design and Building Practitioners Act 2020 (NSW) and the duty of care owed to them by construction professionals. Homeowners should always ensure that they engage qualified and reputable builders, and should not hesitate to seek legal advice if they believe their builder has breached their duty of care.

As a specialist construction lawyer, I have extensive experience in advising homeowners on their construction contracts and disputes. If you are a homeowner and have concerns about defects in your property or have any questions regarding your rights and obligations under the law, please do not hesitate to contact me for advice and assistance.

It is important to take prompt action to enforce your rights and have defects rectified before they cause further damage or potentially become more difficult and expensive to fix. Don’t wait until it’s too late, reach out to a specialist construction lawyer today.