In the October 2013 edition, MCW In-Focus looked at the decision of the New South Wales Court of Appeal in Owners Corporation v Brookfield Multiplex [2013] NSWCA 317.

The Court held that the builder (Brookfield) owed a duty of care to an owners corporation of serviced apartments to prevent latent defects in the common property. Accordingly, Brookfield was liable in an action for pure economic loss where the defects:

  1. were structural; or 
  2. constituted a danger to persons or property in, or in the vicinity of, the serviced apartments, o
  3. made those apartments uninhabitable. 

The High Court has now granted Brookfield leave to appeal. 

The heart of Brookfield's case is that the specific contractual provisions dealing with defects in the contract between Brookfield and the developer of the apartments displaced any tortious duty of care that may otherwise have arisen. As such, the High Court decision will be relevant  not only to Bodies Corporate, but to builders, developers and subsequent purchasers of commercial buildings.

Furthermore, Brookfield highlighted the ambiguity that persists after Bryan v Maloney and Woolcock Street Investments v CDG, and the absence of a clear line between building work that will attract a duty of care in negligence, and work which will not. David Jackson QC, for Brookfield, remarked that "that this perhaps is a case where a dagger might be put to the heart of the beast ... marauding the law since the decision in Bryan v Maloney." Their Honours seem to be in agreement.