Written by The NSW Supreme Court has recently clarified the limits of apportionment under the Design and Building Practitioners Act 2020 (NSW) (DBPA). In Kapila v Monument Building Group Pty Ltd [2025] NSWSC 1306, Justice Richmond held that liability for breaches of the statutory duty of care under section 37 of the DBPA cannot be apportioned, even in cases where no work is delegated or subcontracted to others.
The case arose following defects in a home in Paddington. The builder and its director were found liable for defective works, including electrical and waterproofing issues. They argued that they had not delegated or subcontracted any work and should therefore be able to apportion liability under Part 4 of the Civil Liability Act 2002 (NSW) (CLA). Justice Richmond rejected this argument and found that Part 4 of the CLA does not apply to section 37 claims, regardless of whether delegation occurred.
The Court confirmed that section 37 of the DBPA does not allow liability to be apportioned, even for individual contractors carrying out specific tasks. Defendants, however, retain the ability to pursue cross-claims to recover contributions from other responsible parties. As a result, builders, designers and engineers should be aware of their potential exposure to full liability.