CRENNAN, BELL AND KEANE JJ. The first respondent, which is conveniently referred to as "the respondent", is the owners corporation in respect of the common property in a strata‑titled serviced apartment complex in Chatswood, New South Wales. The appellant built the complex pursuant to a contract with a developer, who owned the land on which it was built.
The respondent brought proceedings against the appellant in the Supreme Court of New South Wales to recover damages for the cost of repairing what were said to be latent defects in the common property of the serviced apartment complex. The respondent contended that the appellant was liable in negligence for breach of a duty "to take reasonable care to avoid a reasonably foreseeable economic loss to the [respondent] in having to make good the consequences of latent defects caused by the building's defective design and/or construction." The respondent's contention was rejected at first instance, but was upheld (albeit subject to limitations presently contested by the respondent) by the Court of Appeal of New South Wales.
The Court of Appeal proceeded to its conclusion on the basis that the duty of care propounded by the respondent matched an equivalent tortious duty of care owed by the appellant to the developer of the serviced apartment complex. The appellant contended that the Court of Appeal had erred in supplementing the appellant's obligations to the developer by adding a tortious duty equivalent to that propounded by the respondent: the appellant's obligations to the developer as to the quality of the work were comprehensively stated in the contract pursuant to which the complex was built. The respondent disputed the contention that it was not permissible to supplement the appellant's contractual obligations to the developer in this way, and argued that, in any event, imposing an equivalent tortious duty in favour of the developer was not an essential step on the path to holding the appellant liable in negligence to the respondent.
To the latter contention the appellant replied that dispensing with the need for an equivalent liability on its part to the developer, for whom it built the complex, would reduce the law to incoherence, in that, in relation to defects in the quality of construction, a builder of a building may find itself potentially liable in tort to every subsequent owner of the building and yet not be liable to the party for whom the building was originally constructed.
The appellant also contended that the contracts pursuant to which the owners of apartments acquired their rights in the common property afforded those owners, and the respondent as their agent, such protection against the risk of economic loss attributable to defects in construction that the owners and the respondent were not relevantly vulnerable to the appellant, for the purposes of the law of negligence, in respect of the risk of economic loss by reason of such defects.
The appellant's contentions should be accepted. It is of critical importance in this regard that, as was common ground between the parties, the loss for which the respondent claimed damages is truly characterised as economic loss. The respondent's claim is based on the failure of the purchasers of the apartments to get value for money from the developer rather than on the appellant's causing damage to the respondent's property. One difficulty with the respondent's claim is that the respondent itself paid nothing for the common property: it suffered no "loss" arising out of the acquisition of the common property. And to say that the common property, for which it paid nothing, is less valuable to it by the amount which it must expend to repair it, is distinctly not to show that any act or omission on the part of the appellant caused the respondent's assets to be diminished. As Stanley Burnton LJ said in Robinson v P E Jones (Contractors) Ltd:
"the crucial distinction is between a person who supplies something which is defective and a person who supplies something (whether a building, goods or a service) which, because of its defects, causes loss or damage to something else. …
I do not think that a client has a cause of action in tort against his negligent accountant or solicitor simply because the accountant's or solicitor's advice is incorrect (and therefore worth less than the fee paid by the client). The client does have a cause of action in tort if the advice is relied upon by the client with the result that his assets are diminished."
If that preliminary difficulty is put to one side on the basis that the respondent acquired the common property as a proxy for the purchasers of apartments who are disappointed with the bargains they made with the developer, a substantial difficulty remains. The circumstance that economic loss of this kind is a foreseeable consequence of a want of reasonable care by the appellant is not of itself sufficient to make the loss compensable in negligence, even where acceptance of the claim will not give rise to indeterminate liability.
The expansive view of the appellant's obligations to the respondent which was upheld by the Court of Appeal in this case is not supported by the decision in Bryan v Maloney; and it does not accord with the decision of this Court in Woolcock Street Investments Pty Ltd v CDG Pty Ltd. This Court's decision in Bryan v Maloney does not sustain the proposition that a builder that breaches its contractual obligations to the first owner of a building is to be held responsible for the consequences of what is really a bad bargain made by subsequent purchasers of the building. To impose upon a defendant builder a greater liability to a disappointed purchaser than to the party for whom the building was made and by whom the defendant was paid for its work would reduce the common law to incoherence. Moreover, to hold that a subsequent purchaser of a building is vulnerable to the builder so far as the risk of making an unfavourable bargain for its acquisition is concerned would involve a departure from what was held by this Court in Woolcock Street Investments.
The commercial background
The serviced apartment complex was constructed by the appellant as part of a transaction between Chelsea Apartments Pty Ltd ("the developer") and companies in the Stockland Group ("Stockland"). The development involved the construction of a 22‑storey building, with two major components, the serviced apartment complex being floors one to nine, and residential apartments being floors 10 to 22.
The respondent is the owners corporation in respect of the serviced apartment lots on floors one to nine.
Pursuant to the terms of a Deed of Master Agreement dated 11 August 1997 ("the Master Agreement"), the developer, who was the registered proprietor of the land on which the building was to be constructed, agreed with Stockland to design and construct the building and then to lease apartments on certain floors to a Stockland subsidiary, Park Hotel Management Pty Ltd ("Park"), to be operated by Park as serviced apartments. The apartments were to be sold to investors, subject to the leases granted to Park; and Park would operate a business of servicing those apartments under the "Holiday Inn" brand.
Under the Master Agreement, the developer warranted the quality of its building work to Stockland.
On 5 November 1997, the developer and the appellant entered into a design and construct subcontract ("the D&C contract") for the construction of the building for the sum of $57,539,000. It was common ground that the D&C contract was negotiated between sophisticated and experienced parties at arms' length and on an equal footing.
The D&C contract
The D&C contract contained detailed provisions with respect to the quality of the work to be performed by the appellant as "Contractor" for the developer as "Principal".
Clause 3.1 of the D&C contract provided that "[t]he Contractor shall execute and complete the work under the Contract in accordance with the requirements of the Contract."
Clause 4 of the D&C contract provided relevantly:
"4.1 Contractor's Warranties
Without limiting the generality of Clause 3.1, the Contractor warrants to the Principal that the Contractor -
(a) … shall exercise due skill, care and diligence in the execution and completion of the work under the Contract;
…
(e) shall execute and complete the work under the Contract in accordance with the Design Documents so that the Works, when completed, shall -
(i) be fit for their stated purpose; and
(ii) comply with all the requirements of the Contract and all Legislative Requirements."
Clause 30 of the D&C contract provided relevantly:
"30.1 Quality of Material and Work
The Contractor shall use the materials and standards of workmanship required by the Contract. In the absence of any requirement to the contrary, the Contractor shall use suitable new materials and proper and tradesmanlike workmanship.
...
30.3 Defective Material or Work
If the Superintendent discovers material or work provided by the Contractor which is not in accordance with the Contract, the Superintendent shall as soon as practicable notify the Contractor. The Superintendent may direct the Contractor -
…
(c) to … reconstruct, replace or correct the material or work; or
…
The Superintendent may direct the times within which the Contractor must commence and complete the … reconstruction, replacement or correction.
…
30.6 Generally
...
Nothing in Clause 30 shall prejudice any other right which the Principal may have against the Contractor arising out of the failure of the Contractor to provide material or work in accordance with the Contract."
Clause 55 of the D&C contract obliged the appellant to:
"(a) cause the Building to be constructed in general accordance with the Development Consent (including, without limitation, the plans and specifications in the Development Application);
(b) cause the Serviced Apartments Parcel to be constructed in general accordance with the Serviced Apartments Floor Plan;
(c) cause the Serviced Apartments Parcel to be finished in general accordance with the Serviced Apartments Finishes; and
(d) install in each of the Serviced Apartments the FF&E Package (as amended by the Trade Off List) relevant to the particular Serviced Apartments."
The D&C contract provided for a Defects Liability Period. In this regard, cl 37 provided that the appellant would be liable to rectify construction defects for a period of 52 weeks commencing from the date of practical completion.
Clause 31 of the D&C contract made provision for the Superintendent to test any material or work at any time before the expiry of the Defects Liability Period. To this end the Superintendent was authorised by cl 31.2 to direct that any part of the work under the contract shall not be "covered up or made inaccessible without the Superintendent's prior approval."
Clause 42.6 provided for the Superintendent, at the expiry of the Defects Liability Period, to issue to the developer a "Final Certificate" of "the amount which, in the Superintendent's opinion, is finally due from the Principal to the Contractor or from the Contractor to the Principal arising out of the Contract or any alleged breach thereof."
Clause 42.6 continued:
"Unless either party, either before the Final Certificate has been issued or not later than 21 days after the issue thereof, serves a notice of dispute … the Final Certificate shall be evidence that the Works have been completed in accordance with the terms of the Contract … except in the case of -
(a) fraud, dishonesty or fraudulent concealment relating to the work under the Contract or any part thereof or to any matter dealt with in the said Certificate;
(b) any defect (including omission) in the Works or any part thereof which was not apparent at the end of the Defects Liability Period, or which would not have been disclosed upon reasonable inspection at the time of the issue of the Final Certificate".
The effect of cl 42.6(b) was that the developer had contractual protection against the appellant in respect of the expense of repairing latent defects in the building after the Defects Liability Period had expired.
The D&C contract also provided for the terms on which the developer would offer individual lots for sale to investors. Annexed to the D&C contract was a form of standard contract for sale, which conferred on each purchaser of a lot specific contractual rights in relation to defects in the property, including the common property.
The contracts for sale
By cl 26.1 of the standard form contract for sale the purchaser represented and warranted that it "did not rely on any representations or warranties about the subject matter of this contract … except those representations and warranties set out in this contract", and had "obtained appropriate independent advice on and is satisfied about … the purchaser's obligations and rights under this contract".
Clause 32.1 of the standard form contract set out the purchaser's rights in respect of the quality of construction. In particular, the developer was obliged "[b]efore completion … [to] cause the property and the Common Property to be finished as specified in the Schedule of Finishes … in a proper and workmanlike manner."
Clause 32.6 obliged the developer to:
"repair in a proper and workmanlike manner, at the [developer's] expense, within a reasonable time after the applicable notice has been served by the purchaser, any defects or faults in the property due to faulty materials or workmanship (including Special Faults but excluding minor shrinkage and minor settlement cracks) of which notice is served by the purchaser within 6 months after completion. The purchaser may not serve notice of defects or faults other than Special Faults on more than 3 occasions."
Clause 32.7 obliged the developer to:
"repair in a proper and workmanlike manner, at the [developer's] expense, within a reasonable time after the applicable written notice has been served on the [developer], any defects or faults in the Common Property due to faulty materials or workmanship … of which written notice is served on the [developer] by the Owners Corporation within 7 months after the date of registration of the Strata Plan."
The strata scheme legislation and the owners corporation
After a construction period of approximately two years, the serviced apartments were completed. On 11 November 1999, the appellant registered the strata plan for the serviced apartments. By virtue of that registration, the respondent was brought into existence and the common property in the serviced apartment complex was vested in it.
The developer, as the registered proprietor of the serviced apartment lots, sold them to investors subject to the leases which enabled them to be deployed by Park in its "Holiday Inn" business.
Section 20 of the Strata Schemes (Freehold Development) Act 1973 (NSW) ("the SSFD Act") provides:
"The estate or interest of a body corporate in common property vested in it or acquired by it shall be held by the body corporate as agent:
(a) where the same person or persons is or are the proprietor or proprietors of all of the lots the subject of the strata scheme concerned - for that proprietor or those proprietors, or
(b) where different persons are proprietors of each of two or more of the lots the subject of the strata scheme concerned - for those proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
Section 61(1)(a) of the Strata Schemes Management Act 1996 (NSW) ("the SSM Act") provides that "[a]n owners corporation has, for the benefit of the owners … the management and control of the use of the common property of the strata scheme".
Section 62(1) of the SSM Act provides that "[a]n owners corporation must properly maintain and keep in a state of good and serviceable repair the common property".
The proceedings
The respondent commenced an action against the appellant in 2008 to recover the cost of rectifying defects found in the construction of the common property of the serviced apartment complex. Initially, the respondent also claimed that the appellant was liable for breaching statutory warranties relating to the quality of workmanship under Pt 2C of the Home Building Act 1989 (NSW), but that claim was resolved before trial.
The respondent particularised the defects of which it complained. The primary judge accepted that "if the defects alleged exist, then many of them are properly to be characterised as latent defects". For present purposes, it is necessary to note only that of the five categories of alleged defects, the complaint made by the respondent in relation to two categories, namely, the steel lintels and windows, was that the work does not comply with the specifications under the D&C contract. The complaint in respect of the third category was that "[t]he external render to the façade of the building is defective." The complaint in respect of the fourth category, namely, the sheet metal cowlings to the fire services shutters, is that they "were fabricated and coated with materials which were unsuitable for exterior exposure." The complaint in respect of the fifth category of defects, namely, the water leak from the spa, is that there were "defects to the waste connection and inadequate waterproofing to the enclosure below the spa."
Whether such defects as may be proved to exist are structural or likely to render the building dangerous to person or property or uninhabitable is an issue contested by the appellant. It has not yet been decided.
The decision of the primary judge
The parties asked the primary judge (McDougall J) to determine the question whether the appellant owed the respondent the duty propounded by the respondent separately from the other issues in the proceedings.
On 10 October 2012, the primary judge answered the separate question, holding that the appellant did not owe the respondent the duty of care propounded by the respondent. In consequence, his Honour gave judgment for the appellant in the action.
His Honour held that "[w]here the parties have negotiated in full their rights and obligations, there is no reason for the law to intervene by imposing some general law duty of care." His Honour concluded that the duty of care propounded by the respondent was not supported by this Court's decision in Bryan v Maloney; and, given the difficulties of principle involved in imposing on the appellant what Brennan J in Bryan v Maloney referred to as a transmissible warranty of quality, any alteration to the position at common law should be undertaken by the legislature.
The decision of the Court of Appeal
The respondent appealed to the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal (Basten JA, Macfarlan and Leeming JJA agreeing) allowed the appeal.
Basten JA proceeded on the basis "that no general law duty of care can arise with respect to successive owners unless there [is] a general law duty owed to the original owner with whom the builder contracted to construct the building." His Honour concluded that the appellant owed the developer a duty under the law of tort to take reasonable care that it should not suffer economic loss concurrently with the contractual duties which arose under the D&C contract. In this regard, his Honour held that the developer was "vulnerable" to the appellant in the sense that it was reliant on the appellant's "expertise, care and honesty ... in performing its obligations under the [D&C] contract."
Basten JA rejected the argument that the contractual arrangements between the appellant and the developer dealt comprehensively with their relationship so as to leave no room for the imposition of a duty of care in tort. His Honour held that the D&C contract:
"did not purport expressly, or by necessary implication, to exclude any liability for defects or omissions which might arise otherwise than during [the Defects Liability Period], whether under contract or under the general law."
It may also be noted here that Macfarlan JA, melding a number of lines of argument, including a reference to this Court's decision in Astley v Austrust Ltd, said:
"The existence of a contract between the developer and a builder for the latter to construct a building does not preclude the existence of a duty of care owed by the builder to the developer as similar contractual and tortious rights may exist concurrently. Further, it was not suggested in Astley that proof of the existence of a tortious duty of care concurrent with contractual obligations was dependent upon proof by the party to whom it was owed that it could not have negotiated with the party subject to the duty for contractual protection against the loss that came to be suffered. This being the case, it is difficult to see why a successor in title, or a party otherwise related to that to whom the duty of care was owed, should have to show that it could not have negotiated contractual protection in order to establish that a duty of care was owed to it."
Basten JA went on to conclude that the appellant owed the propounded duty to the respondent, as successor in title to the developer. His Honour reasoned that, as the respondent was at least as vulnerable as the developer to the risk of economic loss from latent defects, so the respondent was owed a duty in tort equivalent to that held to be owed by the appellant to the developer. Basten JA said:
"[the respondent] was vulnerable with respect to latent defects in the same way that the developer was. Indeed, its position was weaker than that of the developer, which may have had some opportunity to carry out inspections during the course of the construction and before the defective materials were no longer examinable."
Basten JA summarised his conclusions:
"Accepting that the general law does not impose a general duty of care to avoid economic loss, and that the decision in Bryan v Maloney does not in terms dictate the outcome in the present case, there are significant features which militate in favour of the existence of a duty of care covering loss resulting from latent defects which (a) were structural, (b) constituted a danger to persons or property in, or in the vicinity of, the serviced apartments, or (c) made them uninhabitable. The existence of a duty expressed in those terms should be accepted."
It is to be noted that Basten JA confined the appellant's duty so that the appellant was bound only to avoid causing economic loss in relation to those defects which were "dangerous" in the sense that, if left unrepaired, they could cause personal injury or damage to property or made the premises uninhabitable. The respondent had not argued for a duty of care confined in this way; and consequently, in this Court, the respondent contended that the duty owed to it by the appellant should not be qualified or limited as indicated by Basten JA.
Macfarlan and Leeming JJA made some additional observations upon which the respondent was disposed to rely in this Court in support of its argument that it was unnecessary that there be a duty owed by the appellant to the developer equivalent to the duty propounded by the respondent against the appellant. In this regard, Macfarlan JA said:
"[T]he [appellant] argued that the [respondent] did not show that it had been vulnerable, in the sense that it had been unable to protect itself from the consequences of the [appellant's] lack of care, because it did not show that it could not have bargained with the developer for contractual protection. One answer to this argument is that the [respondent] only came into existence on registration of the strata plan and was not a conventional successor in title which acquired the property in question under a contract with the previous owner (here the developer)."
Leeming JA referred to the SSM Act and to s 20 of the SSFD Act, adding:
"There is nothing antithetical in those provisions to a duty of care owed by the builder to that special creature of statute which is intended by builder and developer to come into existence following the performance of the builder's obligations. The legislative scheme is such that the owners' corporation is much more vulnerable than, say, a company which owns land on which is to be erected a company title building. To the contrary, what would be strange, to my mind, would be an imputed legislative intention to deny to that corporation the ordinary rights legal persons enjoy at common law."
In the upshot, the Court of Appeal set aside the orders made by the primary judge and answered the separate question posed by the parties by holding that the appellant owed the respondent a duty:
"to exercise reasonable care in the construction of the building to avoid causing the [respondent] to suffer loss resulting from latent defects in the common property vested in the [respondent], which defects (a) were structural, or (b) constituted a danger to persons or property in, or in the vicinity of, the serviced apartments, or (c) made those apartments uninhabitable."
The appeal to this Court
The appellant appealed to this Court pursuant to special leave granted on 14 March 2014.
The respondent filed a notice of contention to the effect that the Court of Appeal had erred in restricting the scope of the appellant's duty of care to latent defects that were "dangerous". The respondent also sought to cross-appeal on the basis that the appellant owed the respondent the duty propounded by it even if the appellant did not owe an equivalent duty to the developer.
The appellant's submissions
The appellant's first submission was that the appellant's obligations to the developer were so comprehensively stated in the D&C contract that there was no room for the imposition by the law of tort of a concurrent duty of care to the developer.
The appellant's second submission was that, whatever its obligations to the developer, it did not owe the respondent the duty of care propounded by it.
The respondent's submissions
The respondent submitted that the duty of care propounded by it does not depend on finding an equivalent duty of care owed by the appellant to the developer. The respondent argued that, in determining whether the appellant owed the respondent a duty of care, the correct approach was to focus on the salient features of the relationship between the appellant and the respondent separately from the relationship between the appellant and the developer. The salient features on which the respondent relied were the appellant's power of administration of the D&C contract (which gave the appellant control of the developer's rights and expectations), the expertise of the appellant in business matters, the commercial cost to the developer of monitoring the construction work, and, based on the foregoing, general notions of assumption of responsibility and reliance.
The respondent also embraced the point made by Macfarlan and Leeming JJA that, because the respondent did not come into existence until the registration of the strata plan, it was vulnerable to the risk of loss from latent defects because it had no opportunity to take steps to protect itself against the financial consequences of latent defects in the construction of the common property.
In this regard, the respondent emphasised that cl 65 of the D&C contract obliged the appellant to register the strata plan which brought the respondent into existence, so that from the moment of its coming into existence it was obliged by s 62(1) of the SSM Act to rectify defects in the common property as they became apparent. Because the respondent had no opportunity to accept or reject the vesting in it of the common property and to protect itself from the expense of having to make good any defects in the construction, it should be held, so it was said, that the respondent was relevantly vulnerable to a risk of loss in respect of which the appellant owed it the propounded duty. This was said to be so irrespective of whether the appellant owed an equivalent duty to the developer.
In the alternative, the respondent submitted that there was an assumption by the appellant of liability to the developer for latent defects, and reliance by the developer on the appellant, which gave rise to a duty in tort equivalent to the duty propounded by the respondent.
In addition, and contrary to the conclusion of the Court of Appeal, the respondent contended that, in establishing the nature and scope of the propounded duty, it is the significance of the loss in value of the building or the expenditure necessary to make good the defects that is germane, rather than the characterisation of the defects as "dangerous".
Before addressing these submissions directly, it is desirable to make some general observations in relation to the protection afforded to economic interests by the common law.
The common law and economic loss
Economic interests are protected by the law of contract and by those torts that are usually described as the economic torts, such as deceit, duress, intimidation, conspiracy, and inducing breach of contract. Generally speaking, the common law protects the interest of a party in having its contractual expectations met by the law of contract. The law of negligence developed as part of the common law in this context. As Blackmun J said in delivering the opinion of the Supreme Court of the United States in East River Steamship Corp v Transamerica Delaval Inc, "the failure of the purchaser to receive the benefit of its bargain [is] traditionally the core concern of contract law."
The causes of action known as the economic torts were established in the common law before the decision of the House of Lords in Donoghue v Stevenson. In Allen v Flood in 1897, the House of Lords held that a person may deliberately cause economic harm to another without liability in tort provided that the defendant was not part of a conspiracy and that the means employed to inflict the harm were not themselves unlawful. Unintentionally inflicted economic loss was held to be compensable by an action for negligence only after the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd. Until then, the common law of tort passed the burden of economic loss from plaintiff to defendant only where the defendant intentionally inflicted harm on the plaintiff by conduct which was unlawful for reasons other than that it was likely to, and did, cause economic loss. And even then, the expanded liability for economic loss established by Hedley Byrne & Co Ltd v Heller & Partners Ltd depended upon proof of the fact of assumption of responsibility by a person giving advice to another, and that other having relied upon the advice.
The respondent sought to rely upon the decision of this Court in Voli v Inglewood Shire Council. That case establishes that the appellant may have been liable in damages for physical injuries to third parties resulting from defective work performed in the course of its contract with the developer. But the respondent's argument fails to observe the crucial distinction between physical injury and economic loss. Under the common law, "[t]he former is protected by the law even when, in similar circumstances, the latter is not."
A cause of action in negligence does not arise unless and until the plaintiff suffers damage. Damage is the gist of the cause of action in negligence. As Brennan J said in John Pfeiffer Pty Ltd v Canny, a "duty of care is a thing written on the wind unless damage is caused by the breach of that duty." It is of critical importance to appreciate that the loss for which the respondent seeks damages is the expense which it is obliged to incur as a result of the emergence of latent defects after its acquisition of the common property. It was common ground that this expense is properly understood as a species of economic loss as distinct from damage to its property. The gist of the respondent's cause of action is that the interest in the common property it acquired from the developer was not as valuable as it should have been if the purchasers had got value for their money.
Quite apart from "the traditional common law approach" reflected in the maxim "caveat emptor", the loss incurred by a purchaser of a building who, it turns out, has paid more for the building than it should have, is significantly different from a liability in the owner to third parties who have suffered personal injuries or damage to their property as a result of a defect in the building. An owner who is, or should presumably be, aware of a defect in a building may incur liability to third parties injured by the defect because the owner decided not to incur the expense of repairing the defect in the building. The decision which attracts that liability will usually not be one to which the negligent builder has contributed.
These considerations were reflected in the observations of McPherson JA in Fangrove Pty Ltd v Tod Group Holdings Pty Ltd that the common law maintains the distinction between the protection afforded to personal or property interests and economic interests because the common law "values the physical integrity of a person at a level well above the interests of commerce", and because of "the capacity of those who engage in commerce to protect themselves against the kind of loss that the plaintiff sustained here." These observations accord with this Court's decision in Woolcock Street Investments.
Woolcock Street Investments
In Woolcock Street Investments, Gleeson CJ, Gummow, Hayne and Heydon JJ accepted that the general rule of the common law is that damages for economic loss which is not consequential upon damage to person or property are not recoverable in negligence even if the loss is foreseeable. Their Honours said:
"In Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad', the Court held that there were circumstances in which damages for economic loss were recoverable. In Caltex Oil, cases for recovery of economic loss were seen as being exceptions to a general rule, said to have been established in Cattle v Stockton Waterworks, that even if the loss was foreseeable, damages are not recoverable for economic loss which was not consequential upon injury to person or property."
In Woolcock Street Investments, the plurality noted that the exception to the general rule for negligent misstatement recognised in cases such as Mutual Life & Citizens' Assurance Co Ltd v Evatt and Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] depends on proof of an assumption of responsibility by the defendant and known reliance on the defendant by the plaintiff.
In Woolcock Street Investments, Bryan v Maloney was explained as an example of a decision based on "notions of assumption of responsibility and known reliance." The plurality said that Bryan v Maloney:
"depended upon considerations of assumption of responsibility, reliance, and proximity. Most importantly, [the principles that were engaged] depended upon equating the responsibilities which the builder owed to the first owner with those owed to a subsequent owner."
Further in this regard, the plurality in Woolcock Street Investments noted that in decisions such as Perre v Apand Pty Ltd, Hill v Van Erp and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, the concept of vulnerability could be invoked as the rationale explaining the exceptions to the general rule. Vulnerability, in this field of discourse, is concerned not only with the reasonable foreseeability of loss if reasonable care is not taken by the defendant, but also, and importantly, with the inability of the plaintiff to take steps to protect itself from the risk of the loss. Their Honours held that the concept of vulnerability did not afford a basis for holding the defendant liable in that case because the facts of the case did:
"not show that the appellant could not have protected itself against the economic loss it alleges it has suffered. It is agreed that no warranty of freedom from defect was included in the contract by which the appellant bought the land, and that there was no assignment to the appellant of any rights which the vendor may have had against third parties in respect of any claim for defects in the building. Those facts describe what did happen. They say nothing about what could have been done to cast on the respondents the burden of the economic consequences of any negligence by the respondents."
To similar effect McHugh J said:
"The first owners and subsequent purchasers of commercial premises are usually sophisticated and often wealthy investors who are advised by competent solicitors, accountants, architects, engineers and valuers. In the absence of evidence, this Court must assume that the first owner of commercial premises is able to bargain for contractual remedies against the builder. It must also assume that a subsequent purchaser is able to bargain for contractual warranties from the vendor of such premises."
These passages accord with the primacy of the law of contract in the protection afforded by the common law against unintended harm to economic interests where the particular harm consists of disappointed expectations under a contract. The common law has not developed with a view to altering the allocation of economic risks between parties to a contract by supplementing or supplanting the terms of the contract by duties imposed by the law of tort.
Statutory provisions may supplement the common law of contract by providing for special protection to identified classes of purchasers on the ground, for example, that they may not be expected to be sufficiently astute to protect their own economic interests. Part 2C of the Home Building Act 1989 (NSW) is an example of such a statutory regime.
By enacting the scheme of statutory warranties, the legislature adopted a policy of consumer protection for those who acquire buildings as dwellings. To observe that the Home Building Act does not cover claims by purchasers of serviced apartments is not to assert that the Act contains an implied denial of the duty propounded by the respondent. Rather, it is to recognise that the legislature has made a policy choice to differentiate between consumers and investors in favour of the former. That is not the kind of policy choice with which courts responsible for the incremental development of the common law are familiar; and to the extent that deference to policy considerations of this kind might be seen to be the leitmotif of this Court's decision in Bryan v Maloney, the action taken by the New South Wales legislature served to relieve the pressure, in terms of policy, to expand the protection available to consumers.
Bryan v Maloney
It might be said that this Court's decision in Bryan v Maloney is distinguishable from the present case because it was concerned with the construction of a dwelling house rather than a commercial investment. But this distinction was not said to be material by either party in this Court. That is understandable, given that the distinction between purchases of buildings for domestic and commercial purposes is an unstable one (at least in the absence of statutory definition), because its application means that liability is apt to come and go depending on the use intended for a building by its successive purchasers.
The material distinctions between the present case and Bryan v Maloney lie, first, in the detailed prescriptions of the D&C contract between the appellant and the developer, in contrast to the simple obligation in Bryan v Maloney between the builder and the original owner to exercise reasonable skill and diligence in the construction of the dwelling; and, secondly, in the express promises in cll 32.6 and 32.7 of the sales contracts, in contrast to the situation in Bryan v Maloney, where there was no promise as to quality given to Mrs Maloney when she acquired the dwelling.
As to the first of these grounds of distinction, in Bryan v Maloney the builder's obligations as to the quality of design and construction were not expressed in the specific and detailed provisions to be found in the D&C contract. That being so, it could also be said that the relationship between the builder and the original owner in Bryan v Maloney was:
"characterized by the kind of assumption of responsibility on the one part (ie the builder) and known reliance on the other (ie the building owner) which commonly exists in the special categories of case in which a relationship of proximity and a consequent duty of care exists in respect of pure economic loss."
A conclusion that the builder owed to the first owner obligations equivalent in content to the tortious duty asserted by the subsequent owner was apparently thought to lessen the force of the objection to imposing a more onerous obligation on a builder in favour of the subsequent owner than was owed by the builder to the person for whom it agreed to carry out the building work and by whom it was paid. In Woolcock Street Investments, the plurality noted that:
"In Bryan v Maloney, it was found that there was no disconformity between the duty owed to the original owner and the duty owed to the subsequent owner. As Toohey J said, that case was 'uncomplicated by anything arising from the contract between the appellant and Mrs Manion' (the original owner)."
In this case, by contrast, there was no substantial equivalence between the obligations of the appellant to the developer and the duty propounded by the respondent. That may be seen by a consideration of the terms of the contract between the appellant and the developer to which reference will be made in the next section of these reasons.
As to the second ground of distinction noted above, in the present case each purchaser from the developer exercised its contractual wisdom to bargain for protection against the risk of defects in the work. Purchasers of units in the serviced apartment complex from the developer, and the respondent, were protected by reason of the developer's promises in cll 32.6 and 32.7 of the sales contracts against the risk of economic loss because of defects of quality. It is true that these provisions did not protect purchasers or the respondent against the possibilities that the developer would not be of sufficient substance to meet the liability or that any defect would not be discovered within time to make a claim under the warranty. But as to these possibilities, the appellant had nothing to do with the purchaser's decision to accept the value of the developer's warranty or with the decision by the purchaser not to investigate for defects. Had a purchaser not been satisfied that its investment was adequately protected in this way, it could have avoided the risk of loss by taking its capital and investing elsewhere. As McHugh J said in Woolcock Street Investments:
"A commercial building is constructed or bought because it is perceived to be a suitable vehicle for investment. … [N]o prudent purchaser would contemplate buying a building without determining whether it has existing or potential construction defects. Knowledge of its defects, actual or potential, is central to any evaluation of its worth as an investment. In so far as risks are uncertain or unknown, the prudent purchaser will factor the risk into the price or obtain contractual protections or, if necessary, walk away from the negotiations."
The obligations of the appellant to the developer
Basten JA held that the developer was "vulnerable in the relevant sense" to the appellant. In this regard, his Honour said:
"The defects, so far as one can tell, do not involve complaints about the design stage of the project, but rather the execution of the building works. There was a superintendent appointed under the design and construct contract, but there can be no doubt that the developer relied upon the expertise, care and honesty of the builder in performing its obligations under the contract. Whatever may be possible in theory, there is no suggestion that in practical terms the contract was not administered in accordance with usual industry practices, which inevitably involve reliance by the developer on the exercise of responsibility by the builder. There is no reason in these circumstances to treat the developer as otherwise than vulnerable in the relevant sense."
This passage suggests that one may disregard the role of the Superintendent under the D&C contract as a mechanism apt to afford protection to the developer against loss of value due to latent defects. But, whatever the "usual industry practices" to which his Honour was referring, the provision made by cll 31 and 42 of the D&C contract for supervision and assessment of the appellant's performance by the Superintendent, linked as it was to payment of the appellant for its work, was a contractual mechanism which squarely placed the risk of deficient work upon the appellant.
The respondent referred to Barclay v Penberthy to support its argument that the duty propounded by the respondent was owed by the appellant to the developer concurrently in contract and tort. In Barclay, the plaintiff succeeded in its claim for damages for economic loss suffered when the aircraft it had chartered crashed as a result of the pilot's negligence, killing the plaintiff's valued employees and thus depriving it of their services. The Court held that it was an implied term of the contract of charter that the charter would be carried out with reasonable skill and diligence. There was no express provision in the contract which dealt with the subject of this term. The obligation created by this implied term was sufficient to entitle the plaintiff to recover the loss suffered as a result of negligent performance of the contract between the plaintiff and the defendant. The content of the duty which arose from the defendant's assumption of responsibility under that contract was the same as that which arose under the implied term of the charter. That was also the case in Astley v Austrust, to which Macfarlan JA referred. In each of these cases, the content of the duty was the same in contract and tort. That is not the case here.
In the present case, the liability of the appellant to the developer was the subject of detailed provisions relating to the risk of latent defects in the appellant's work. The provisions in cll 4, 30, 31, 37 and 42 of the D&C contract expressly cast onto the appellant the risk of expense required to make good any defect in the work. These detailed provisions were apt to secure performance of cl 55 of the D&C contract, which required that the construction be completed in accordance with detailed specifications. They set out the extent of the appellant's obligations to ensure that the developer should "get what it paid for". To supplement them with an obligation to take reasonable care to avoid a reasonably foreseeable economic loss to the developer in having to make good the consequences of latent defects caused by the appellant's defective work would be to alter the allocation of risks effected by the parties' contract.
The provisions of the D&C contract regulated the appellant's obligations to the developer and the extent of the appellant's liability for failing to meet those obligations. To the extent that the respondent's complaints in relation to the steel lintels and windows are grounded in an alleged failure to comply with the contract's specifications, reliance on a duty in the terms propounded by the respondent would be unnecessary and indeed embarrassing. Either the work and materials of the appellant complied with the specifications, in which case the appellant had fulfilled its obligations to the developer, or they did not. In relation to the other categories of alleged defect, whether the respondent's claims of defective work could be established would necessarily depend upon the specifications and other documents referred to in cl 55 of the D&C contract, rather than upon the general duty propounded by the respondent.
A duty owed by the appellant to the respondent independently of its obligations to the developer?
Basten JA analysed the position of the respondent in terms of its vulnerability to the appellant. His Honour said:
"[T]he [respondent] is to be viewed as a true successor in title to the interests of the developer. However, it was vulnerable with respect to latent defects in the same way that the developer was. Indeed, its position was weaker than that of the developer, which may have had some opportunity to carry out inspections during the course of the construction and before the defective materials were no longer examinable."
In relation to the ability of purchasers of lots from the developer to protect themselves against the risk of economic loss, Basten JA said:
"The question of legal protection is more complicated. The standard sale contracts did not include such protection. They were agreed between the builder and the developer and the builder retained a contractual right to be informed of and to approve any change in their terms. It seems inconsistent with the concept of vulnerability, in relation to the existence of a liability on the part of the [appellant] in tort, to say that the purchasers were not vulnerable because they could have insisted upon a contractual right as against the builder or the developer."
That reasoning is not consistent with Woolcock Street Investments. And, in any event, in this case the purchasers did insist upon "a contractual right as against ... the developer" in cl 32.6 of the sales contracts. It may also be noted that there was no factual basis for a conclusion that each purchaser was deprived by the appellant's conduct of the choice of bargaining with the developer for a more extensive warranty as to quality or of walking away from the negotiation and investing elsewhere if a satisfactory warranty at an acceptable price was not forthcoming. In this regard, there was no encouragement given by the appellant or suggestion that the appellant assumed responsibility to them for their decision.
As to the points made by Macfarlan and Leeming JJA in the Court of Appeal upon which the respondent relied in this Court, the question on which the liability asserted by the respondent depends is not whether the legislative scheme of the SSM Act and the SSFD Act excludes a duty of care in favour of the owners corporation. Rather, the question is whether the owners corporation itself suffered a loss in terms of the value of the common property vested in it when, viewed separately from the individual lot owners, it came into existence.
The circumstance that the respondent did not exist at the time that the defective work was carried out points against, rather than in favour of, the duty of care propounded by the respondent given that on this basis it could not have relied upon the appellant in any way. There is no basis for a finding of fact that there was an assumption of responsibility by the appellant in favour of the respondent, or known reliance on the appellant on the part of the respondent, in relation to the quality of the common property of the serviced apartment complex. Further, an owners corporation acquires the common property in a strata scheme without any outlay on its part. Its assets are not diminished by the acquisition, at least if the common property is worth more than the cost of repairing latent defects (and there is no suggestion here that the common property is worth less than the cost of repair). Accordingly, if one considers the owners corporation independently of the individual lot owners, it is impossible to see that it has suffered any loss by reason of the quality of the common property vested in it.
If the respondent is viewed as the alter ego of the purchasers from the developer, the respondent's position is not any stronger. Before explaining why that is so, it is desirable to acknowledge that it may be the better view of the position to regard the respondent for present purposes as the representative of the lot owners.
In Owners - Strata Plan No 43551 v Walter Construction Group Ltd, Spigelman CJ, with whom Ipp and McColl JJA agreed, said that the statutory description of an owners corporation in s 20 of the SSFD Act as agent for the proprietors of individual lots should not be understood "solely in terms of an agency at common law." The precise significance of the reference to agency in s 20 of the SSFD Act is debatable, but it is sufficient for present purposes to say that it tends to confirm, rather than to deny, that the detriment to the economic or financial interests of the owners corporation is, in substance, suffered by the owners of lots. There is nothing in the SSFD Act to suggest that the cost incurred by an owners corporation in meeting the need to keep the common property in good repair is not a loss truly borne by the individual lot owners, given that they are called upon to make proportionate contributions by way of levy under ss 75 and 76 of the SSM Act in order to meet that expense.
That view is supported by s 227(2) of the SSM Act, which provides in relation to common property that "[i]f the owners of the lots in a strata scheme are jointly entitled to take proceedings against any person … the proceedings may be taken by ... the owners corporation." Section 227(3) goes on to provide that "[a]ny judgment … given … in favour of or against the owners corporation in any such proceedings has effect as if it were a judgment … given … in favour of or against the owners." These provisions are consistent with the view that the legislation, while establishing the owners corporation as a convenient vehicle for the vindication of the interests of the individual lot owners, does not deny or diminish those interests.
On the basis that the respondent is to be regarded as making its claim as a proxy for the purchasers from the developer, counsel for the respondent argued that cl 32.7 of the standard form contracts was concerned not with the protection of the purchasers, but with the conferral on the developer of a right to repair defects and thereby to mitigate the damages which might otherwise be recovered from it by the purchasers if they incurred expense in repairing defects themselves. Counsel's argument was evidently intended to lessen the force of the appellant's argument that the tortious duty propounded by the respondent was more extensive than the contractual protection which purchasers had obtained from the developer. As an argument in favour of discounting the protection conferred on the purchasers it is not persuasive.
Clause 32.7 expressly obliged the developer to repair defects brought to its attention within a specified period. The purchasers had a contractual right against the developer which could have protected them against the risk of which the respondent now complains had those rights been pursued in accordance with their terms. It is true that the purchasers would have been required to be alert to the possibility of latent defects in order to exercise their rights under cl 32.7, but the very existence of the provision reflects an awareness of the relevant risk as well as a means of dealing with it.
Counsel for the respondent also said that, if individual lot owners might have brought claims against the developer under cl 32.7 in respect of their proportionate share of the loss incurred by reason of the defects in the common property which have emerged, this right might not now be valuable, for example, because it might be unenforceable due to the lapse of time and associated expiration of the applicable limitation period for bringing an action in contract against the developer, or because of the financial inability of the developer to meet the claims. But these arguments serve only to make the point that the contractual rights of individual purchasers for which they bargained were cast in terms which expressly limited their scope and duration in a manner inconsistent with the open‑ended liability now asserted by the respondent.
Winnipeg Condominium and dangerous defects
Basten JA derived support for his answer to the separate question from the decision of the Supreme Court of Canada in Winnipeg Condominium Corporation No 36 v Bird Construction Co. In that case the Supreme Court of Canada held that a builder owes a duty of care in tort to a subsequent purchaser of the building if it can be shown that it is foreseeable that a failure to take reasonable care in constructing the building would create defects that pose a substantial danger to the health and safety of occupants. Where such defects become manifest before any damage to persons or property occurs, a subsequent purchaser may recover the reasonable cost of making good the defects in order to put the building into a non‑dangerous state.
The respondent argued that the Court of Appeal erred in limiting the duty said to be owed by the appellant to the respondent to cases where the repair of defects in construction was necessary to obviate a situation of danger to person or property. Nevertheless, counsel for the respondent sought to rely upon the decision of the Supreme Court of Canada in Winnipeg Condominium as a last resort to support the Court of Appeal's answer to the separate question.
It may be noted that in Winnipeg Condominium the Supreme Court of Canada chose not to follow the approach of the House of Lords in D & F Estates Ltd v Church Commissioners for England and Murphy v Brentwood District Council.
The approach in Winnipeg Condominium was noted, but not followed, by this Court in Bryan v Maloney and in Woolcock Street Investments. In Fangrove Pty Ltd v Tod Group Holdings Pty Ltd, de Jersey CJ, in the Court of Appeal of Queensland, noted that no Australian authority had adopted this approach. In terms of Australian authority, the position has not improved for the respondent in this regard in the years since that case was decided.
The approach in Winnipeg Condominium is attended by the practical difficulty that "the existence of the duty will not be known until after the defects have occurred and they can be confidently categorised as dangerous." More importantly, in point of principle the approach in Winnipeg Condominium is driven by the assumption that the cost of repair or diminution in market value of a building is a reflex of the liability for physical damage to person or property which may occur if the defect is not repaired. Quite apart from the haphazard nature of this notion of equivalence of damage, this approach is flawed in that it detaches the duty not to inflict harm from the harm which is the gist of the cause of action.
As Lord Oliver of Aylmerton said in Murphy v Brentwood District Council:
"If one assumes the … case of one who has come into possession of a defective chattel … which may be a danger if it is used without being repaired, it is impossible to see upon what principle such a person, simply because the chattel has become dangerous, could recover the cost of repair from the original manufacturer.
The suggested distinction between mere defect and dangerous defect … is, I believe, fallacious. … [O]nce the danger ceases to be latent … [t]he plaintiff's expenditure is not expenditure incurred in minimising the damage or in preventing the injury from occurring. The injury will not now ever occur unless the plaintiff causes it to do so by courting a danger of which he is aware and his expenditure is incurred not in preventing an otherwise inevitable injury but in order to enable him to continue to use the property or the chattel."
The position in other common law jurisdictions
The conclusion that the duty propounded by the respondent should not be accepted is in accord with the position in the United Kingdom. In addition, the preponderance of judicial authority in the United States accords with the conclusion that the respondent's claim should fail.
That a different view prevails in Canada has already been noted. For the reasons set out above, that approach should not be followed in Australia. The respondent's preferred position is also supported by the decision of the Judicial Committee of the Privy Council on appeal from New Zealand in Invercargill City Council v Hamlin. But in that decision it was acknowledged that it departed from the approach which has prevailed in the United Kingdom. For the reasons set out above, the latter view better accords with the coherent development of the common law.
Conclusion and orders
The appeal should be allowed.
The orders of the Court of Appeal of New South Wales should be set aside, and in their place it should be ordered that the appeal to the Court of Appeal of New South Wales should be dismissed with costs.
The first respondent should be granted special leave to cross‑appeal, but the cross‑appeal should be dismissed with costs.
The first respondent must pay the appellant's costs of the appeal to this Court.