If a building is constructed with a defect, it is not enough to claim that the defect constitutes a breach of the statutory duty of care owed under the Design and Building Practitioners Act 2020 (NSW) (DBP Act), because a claimant must be able to specify how exactly the builder or designer was negligent. 

This problem was illustrated in the case of The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068, where the Owners Corporation commenced proceedings against the developer and builder (Loulach) on the basis of defects in a residential strata development in Paramatta. The owners alleged that there had been a breach of the statutory duty of care under the Home Building Act 1980 (NSW) and the DBP Act. 

The owners claimed that a defect constituting a breach of the HBA established that the defect was the result of a breach of the statutory duty of care, but the Court explained that a breach of the duty of care will not be established by the mere fact of a defect. 

This case demonstrates that if a plaintiff wants to bring an action for a breach of the duty of care in relation to building defects, they will still have to establish negligence under the Civil Liability Act 2002 NSW) which includes asking whether the risk was foreseeable, not insignificant and what a reasonable person would have done. 

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