McSwan v Weaver[2023] QCAT 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

TABLE OF CONTENTS

Overview4

Background5

The Issues6

The Relevant Law6

An Historical Discussion on Negligence and Building Cases8

The Current State of the Law17

The Evidence27

Discussion on the Evidence30

Findings of Fact30

Application of the Relevant Law to the Evidence31

The Action in Contract31

The Action in Negligence32

The Alternative Outcome33

Conclusion34

The Need for Legislative Reform35

REASONS FOR DECISION

Overview

1. [1]
   In 2019 the applicants, as home-owners, engaged the respondent, as builder, to construct for them an 8-bay carport adjoining their existence house in which they live. I intentionally use the word ‘engaged’ as distinct to ‘contracted’ because, as I will explain in these reasons, whilst the parties had entered into a contract, all the requisite elements of a contract at law having been satisfied, it was oral only. It was never reduced to writing. Accordingly, it was of no effect.
2. [2]
   The applicants required the colour of the carport roof to match the colour of the house roof. However, the carport was not constructed in that way. Although there was similarity, the colour was different. Whilst not specified at the time the respondent was engaged, the house roof colour was later identified as ‘Ironstone’. The carport roof was constructed using a colour known as ‘Deep Ocean’.^[1] 
3. [3]
   There was no other problem with the construction of the carport. The applicants accept that it is otherwise defect free. They simply say they did not get what they paid for. They say they assumed that the respondent, as a builder, would have checked to see what the original colour was and so the carport should have been constructed using Ironstone coloured material. They say that relied on him to have done that.
4. [4]
   In the absence of being able to reach an agreement with the respondent they sought relief in this Tribunal. They seek an order that he pays them $30,742.80 in damages for this error. They say this is what it will cost them to rectify the error, being to remove the Deep Ocean roofing from the carport and replace it all with Ironstone.
5. [5]
   The respondent accepts that, when he was engaged, the agreement was that the colour of the new roof was to match the colour of the existing house roof. But he says that during the course of the works, before he ordered the roof material, he noticed that the applicants were spray painting the roof screws on the existing house roof with a can of paint showing the colour as being Deep Ocean. Thus, he requested the applicants to advise whether they required the roof sheeting, fascias, and gutters to the carport to be Deep Ocean, to which the female applicant responded in the affirmative. He then constructed the carport roof using Deep Ocean coloured material. For this reason, he challenges the applicants’ claim in its entirety.
6. [6]
   Whilst the issue in this proceeding is narrow, it is complicated by the absence of the requisite written contract document compliant with legislative requirements. In the absence of an effective contract the applicants cannot press their claim as being one for breach of contract. Thus they must proceed with an alternative, in this instance such being only negligence or restitution.
7. [7]
   However as I will explain in these reasons, negligence is not open to them given the requirement for a contract to have been entered into, such being one which would have afforded them the protection of a statutory warranty that would have dealt with their claim. For that reason, the law considers them not to have been vulnerable and thus not owed a duty of care by the respondent. Accordingly they could not succeed in a negligence action.
8. [8]
   As to alternative, such being a claim in restitution, nor could the applicants succeed in that regard. This is because, on the evidence that is before me, there has not been any diminution in value of their property notwithstanding the difference in colour. They got what they paid for.
9. [9]
   All that being said, the respondent succeeds in his challenge of the claim. This is not just because the applicants could not press a claim in contract, negligence, or for restitution as I have just mentioned. It is because, whilst the fact is that ultimately the roof colours are not the same and whilst it should not be unexpected that the applicants would have assumed the respondent, as builder, would have checked to confirm the colour of the house roof, as the evidence before me has shown he did precisely that when he observed the applicants’ use of Deep Ocean spray paint on the roof of the existing house. Critically, he took the positive step of seeking confirmation from the applicants as to the colour, specifically naming it, that they wanted the carport roof to be constructed in. Given the steps he took, in my opinion he may properly be excused from the error that the colours are not the same.

Background

10. [10]
    In late 2019, the female applicant contacted the respondent, a brother to one of her friends, asking if he could construct for her and her husband a large carport adjoining their existing house. An agreement was subsequently entered into for that to occur. It is common ground that a stipulated condition of that agreement was that the colour of the carport roof, to be constructed in colourbond metal, was to be the same as the colour of the existing house roof, it also being constructed in colourbond metal.
11. [11]
    No written contract document was signed by the parties. No such document was even prepared.
12. [12]
    On or about 4/5 March 2020, the respondent observed that the applicants had been, or were,^[2] in the process of spray painting the heads of the roof screws to the existing roof. He saw that they were using a paint tin bearing the colour reference as colourbond ‘Deep Ocean’. That spray paint tin had been purchased by the applicants.
13. [13]
    On 6 March 2020, in the process of, but prior to, ordering the roof sheeting, fascias, and gutters for the new carport, the respondent sent a text message to the female applicant asking if the applicants wanted “the same colour deep ocean as well as the fascia and gutter”. The female applicant’s response was “Yes please”.
14. [14]
    Thereafter the work was completed in March / April 2020. No complaint was made about the colour difference during construction or upon its completion. It was not until December 2020 when it was raised with the respondent. The applicants say this was because they were busy with work, busy with life commitments due to a parent being ill, distracted by the Covid pandemic issues, and in all respects simply overwhelmed to the point that they did not have time to deal with it. The parties’ efforts engaging in the dispute resolution process with the Queensland Building and Construction Commission did not result in a resolution, nor were they otherwise able to find a resolution. As a consequence this proceeding ensued that ultimately brought the parties before me.

The Issues

15. [15]
    The issue at the core of this dispute is a singular and narrow one. It is effectively two questions, namely:

    1. (a)
       Should the roof to the carport have been constructed in Deep Ocean or Ironstone colourbond sheet with matching fascias and gutters?
    2. (b)
       If the answer to that is Ironstone, what is the relief (if any) the applicants should receive.
16. [16]
    Whilst singular and narrow, and thus open to be perceived as a relatively straightforward one to be resolved, its resolution is complicated by the fact that there was no written contract document executed by the parties in compliance with statutory requirements. As a consequence, by operation of legislation, the oral contract they entered into was of no effect. Thus, it gives rise to a third question, namely - what is the cause of action the applicants have against the respondent?
17. [17]
    Their claim is effectively a claim for damages to put them into the position they would have been in had the contract not been breached.^[3] But, in the absence of an effective contract, breach of contract, including breach of the warranties which would have been incorporated into the contract had it been reduced to writing compliant with the legislation, is not open to them. That being so, if the applicants are entitled to relief for a wrong committed by the respondent, the question requires identification of an available cause of action. In the present matter that falls to be determined under the law of tort, in particular negligence, or the law of restitution.
18. [18]
    It is the first of these two which opens the proverbial pandora’s box of complications in the interpretation of the law, thus resulting in these extensive reasons for which is a relatively straightforward claim.
19. [19]
    In terms of the second, there is a further complication, such being the assessment of the quantum of that relief. This is because, save only for the colour difference, there is nothing else wrong with the roof. Thus, the relevant question is what the reasonable value of the roof is for which the applicants have received a benefit. In order to answer this question it requires consideration of whether the relief, if there is to be one, should be the cost of replacing the carport roof or something less. Such requires consideration of whether replacement is a reasonable course of conduct to take in the circumstance that there is nothing else wrong with the carport roof and the associated fascias and gutters.

The Relevant Law

20. [20]
    The work in question is the construction of a carport to a house in which the applicants reside. Thus, it is ‘domestic building work’ as that term is used in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).^[4]
21. [21]
    Accordingly, the applicants’ engagement of the respondent fell within the ambit of a ‘domestic building contract’ under that legislation.^[5]
22. [22]
    In turn it was a ‘level 2 regulated contract’.^[6] As such, the contract was required to have been in written form, dated, and signed by or on behalf of each of the parties to it.^[7] In the absence of it being so, the contract is of no effect,^[8] the consequences of which is that the parties are unable to enforce any rights or obligations arising from the agreement for the works even if the parties were able to show a verbal contract had formed.^[9]
23. [23]
    In the absence of the contract being of effect, the applicants cannot proceed on a cause of action for breach of contract,^[10] and the parties entitlements in respect of the work performed are thus governed by common law principles. They are left to pursue the relief they seek within other areas of the law. As is relevant to the issue in this proceeding, one such area of law is that arising under the law of tort, more specifically negligence.^[11] Another is the law of restitution.^[12] I will return to the negligence issue shortly in these reasons and discuss it at some length.
24. [24]
    There is also an overriding legal principle that applies in cases such as these, namely the question of cost of cure vs diminution in value. As it was expressed by the learned author of Hudsons – Building and Engineering Contracts:

Where a builder has carried out work to a building which requires remediation, the issue that arises is whether the building Owner is entitled to the cost of repairing that defective work – the cost of cure – or is limited to the diminution in the value of their building as a consequence of the defective quality of the work undertaken.^[13]

25. [25]
    This is often referred to as the test in Bellgrove v Eldridge (1954) 90 CLR 369 wherein the Court adopted the following statement made in an earlier version of Hudsons, expressing it as a correct statement of the law:^[14]

… the measure of damages recoverable by the building owner for the breach of a building contract is … the difference between the contract price of the work or building contracted for and the cost of making the work or the building conform to the contract, with the addition, in most cases, of amount of profits or earnings lost by the breach.

26. [26]
    Dixon CJ, Webb and Taylor JJ, expressed a qualification to that rule, it being:^[15]

The qualification, however, as to which this rule is subject is that, not only must the work undertaken by necessary to produce conformity, but it must be a reasonable course to adopt. ... Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of deal with the situation and in such cases the true measure of the building owner’s loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or material.

As to what remedial work is both “necessary” and “reasonable” in any particular case is a question of fact. …

27. [27]
    Whilst the observations made therein were cast in the language of a breach of contract, the same principles can be applied in cases of negligence or restitution. There is however a difference. When damages are assessed for breach of contract, it is the damages that would flow had the breach not occurred and the contract had been performed to completion, and so must be calculated relevant to the contract. When damages are being assessed for negligence, or an equivalent to damages under restitution, it is the amount which would flow had the wrong not occurred and so must be calculated relevant to the net position the applicants are left in after the work had been performed relative to what they should have paid for the work completed in the manner it was. That is, it takes into consideration the value of the work performed in contrast to that which they paid for it, and in so doing addresses the issue of diminished value. This then of course gives rise to the question of what is necessary and reasonable to remedy the alleged error made?
28. [28]
    But, before applying those legal principles to the facts as I find them to be in this proceeding, I will return to the issue of negligence as I mentioned a few paragraphs ago I would.

An Historical Discussion on Negligence and Building Cases

29. [29]
    As I have noted it earlier, in the absence of the contract being of any effect, the applicants do not have a cause of action for breach of contract. At best their action lies in tort, specifically negligence, or in restitution. When I discussed this with Mrs McSwan during the hearing, she informed me that they wanted to proceed on the basis of both. That being so, it is necessary for me to discuss this, particularly in terms of a negligence action, at some length.
30. [30]
    To the extent the applicants are trying to argue, or at least as I understand it they are trying to do, that the respondent failed to fulfill his duty as a professional builder, such is a duty to carry out the work in an appropriate and skilful way and with reasonable care and skill.^[16] Thus the applicants assert the respondent was negligent.
31. [31]
    Such would be consistent with the approach taken in Cerda v Jacob [2020] QCATA 57 (Cerda 2020). In similar circumstances in terms of a contractual relationship, as the Appeal Tribunal expressed it therein:

The parties’ rights fell for determination not under the contract, but in accordance with the Civil Liability Act 2003 (Qld) and the relevant principles relating to breach of duty and restitution.^[17]

32. [32]
    Applying the principles of stare-decisis I am bound to follow the reasoning and conclusions of the Appeal Tribunal in Cerda 2020, and accordingly a reader of these reasons might expect me to have done so. To some degree I have, noting I have already recognised the alternative causes of action open to the applicants in the absence of a contract being of effect. However, I have not reached the same conclusion as the Appeal Tribunal did in Cerda 2020 or the Tribunal has similarly found in other matters at first instance, wherein a builder, in circumstances where the contract between the builder and homeowner was of no effect, was held liable to the home owner in negligence.
33. [33]
    The reason for this is that I consider I am bound to follow higher authorities, namely the reasoning and conclusions of High Court of Australia and the Queensland Court of Appeal, and recognise the reasoning and conclusions of the Queensland Supreme Court, which, respectfully, is not reflected in the reasoning and conclusions of the Appeal Tribunal in Cerda 2020 and the other Tribunal cases which have reached such a finding. I discuss this reasoning in the paragraphs that follow here.
34. [34]
    Firstly, it must not be overlooked that the Civil Liability Act 2003 (Qld) does not create or confer any cause of civil action for the recovery of damages, except in two narrow circumstances neither of which apply in the present circumstances.^[18] Secondly, that being so, the existence of a duty of care which would need to have been breached to give rise to such a claim for damages in negligence must be found to exist in the common law. For the reasons I give in the extensive discussion on that issue in these reasons, even in the absence of an effective contract, whilst it may readily be said the applicants relied on the respondent as builder, and thus the respondent owed them a responsibility to have done more, notwithstanding the decision in Cerda 2000 in my opinion the respondent did not owe a duty of care at law to the applicants.
35. [35]
    In order to deal with this issue as comprehensively as possible but whilst also aiming to maintain a degree of efficiency and succinctness in the giving of these reasons, it seems to me appropriate to start with a discussion on the history of this area of the law as it has been dealt with in this Tribunal, both at first instance and on appeal.
36. [36]
    I start with the Appeal Tribunal’s decision in Olindaridge Pty Ltd v Tracey [2016] QCATA 23 (Olindaridge 2016). The issue in that matter, as it was expressed in the head notes of the Appeal Tribunal’s reasons, was whether a professional builder trading as a licenced construction company owed the same common law duty of care in negligence for pure economic loss as the company. Whilst distinguishable from the present circumstances given the absence of a company through which the respondent trades, its history and the findings made are relevant. It should also be observed that the formation of that issue was premised on the company owing a duty of care to the home owner, something which I will show in the discussion that follows did not exist.
37. [37]
    This dispute had a chequered history. It was aptly described in the reasons of the Appeal Tribunal in Olindaridge 2016, which for convenience I extract here:^[19]

The Traceys were typical first home owners.

They contracted with Olindaridge in 2001 to design and construct them a family home in the seaside town of Woodgate on the central coast.

The Traceys filed a claim for compensation in the Tribunal against both the company and its directors (including the applicant) in 2008 for structural defects in the slab and an infestation of termites.

The claim against the directors was dismissed in 2012 because neither was a party to the contract. The applicant was held not to owe any other specific duty of care outside his obligations as nominee for the company.^[20]

An appeal against that finding was upheld in early 2013 and the directors were reinstated as respondents.^[21]

In August 2013, the company and the applicant were ordered to pay partial compensation of $98,600.^[22] A subsequent appeal was settled by consent orders against the company and the applicant. In the meantime, however, the Traceys had their initial application amended to include a claim for rectification of inadequate external plumbing work, which was the subject matter of BDL276-12 and gives rise to this application. The compensation issue has been adjourned pending its outcome.

It was not alleged or proved that the damage complained of was reasonably discoverable during the building process and there is no suggestion of any intervening negligence causing it.

38. [38]
    When the dispute returned to the Tribunal at first instance after the first appeal, being the second first instance decision from which the appeal decision in Olindaridge 2016 arose, a primary issue for determination was whether the directors and the nominee builder of the building company with whom the homeowners contracted owed a duty of care to the homeowners.^[23]
39. [39]
    Member Suthers in that matter started consideration of this issue by reference to the reasoning of Member Brabazon QC in the earlier Appeal Tribunal decision of Tracey v Rodney Wagner Olindaridge Pty Ltd [2013] QCATA 048. It is convenient to set out part of the reasons of Member Suthers: ^[24]

There has, over recent years, been development in relation to the laws of negligence as they relate to the potential duties owed by a builder to a customer. Those more recent developments in the law are set out in the decision of Member Brabazon QC in the Appeal Tribunal between the parties to this action (other than Mrs Wagner) relevant to the joinder of Mr Wagner in an earlier aspect of the dispute over this building work. The learned Member sets out those developments in his decision as follows:

The decisions of the High Court of Australia in two cases are important. Those cases discuss the principles of the law of negligence that apply to defects in dwelling houses. In particular, Bryan v Maloney established the basic principle “that the builder owed the first owner a duty of care to avoid economic loss of that kind ” - that is, losses caused by defects in construction.

In Woolcock, Gleeson CJ, Gummow, Hayne and Heydon JJ took into account the vulnerability of a home owner – a reference to home owner’s ‟inability to protect themselves from the consequences of a builder’s want of reasonable care.”

In Woolcock, McHugh J reviewed similarly decided cases. Those in Canada and New Zealand permitted an action in negligence for economic loss caused by defective premises. Bryan v Maloney approved those principles. As McHugh J put it, “[t]he decisions … make it difficult to argue that claims in negligence for pure economic loss should be excluded merely because such claims may outflank or undermine fundamental doctrines of the law of contract.” 

The New Zealand cases reveal a similar approach. In Morton v Douglas Homes Ltd, the directors of a building company were personally liable, because of the control they exercised over the building work. More recently, in Dicks v Hobson Swan Construction Ltd (in liquidation) and Ors HC Ak Civ 2004-404-106513, a director of the building company was found to have been negligent, for failing to maintain proper standards of workmanship. He was personally liable for the loss suffered by the home owner.

None of those cases were mentioned in the submissions made to the QCAT Member. They make it clear that it is now appropriate to make personal claims, for negligence, against a builder whose company enters into a building contract. In this case, the nature of the alleged defects and their consequences, the owners ‟apparent reliance on the builder,” and Mr Wagner’s personal involvement make it clear that they are issues that will have to be dealt with as part of the owners’ claims.

I accept that this is a correct summary of the law on this issue. Of course, it is not a binding determination on these parties, in this action. Nor does it mean that a duty is owed by either of the Wagner’s to the Traceys. Those issues need to be separately determined.

40. [40]
    After then considering the factual issues, Member Suthers expressed the following conclusion, ultimately ordering the matter be listed for directions in terms of the future progress of the proceeding, such which appears to be the premise for the appeal in Olindaridge 2016.

In summary then, it is only claims by the Traceys against Olindaridge and Mr Rodney Wagner for breach of duty in tort in relation to the ORG and the downpipes which are able to be pursued at this point.^[25]

41. [41]
    It is then that the dispute returned to the Appeal Tribunal in Olindaridge 2016, wherein the relevant principles to be considered were expressed in the following manner:^[26]

In established categories damage, such as personal injury or property damage, a relationship of ‘proximity’ between the parties implied by the foreseeability of harm is often sufficient to indicate the existence of a tortious duty of care.

However, as a matter of policy courts have been reticent to compensate for pure economic loss (such as diminution in property value or the cost of rectification) caused by negligent conduct.

The reasons typically given for this reluctance are an unwillingness to:

1. (a)
   impose a liability that is indeterminate in class, amount and time;

2. (b)
   disappoint community standards and expectations about pursuing private interests and personal gain; and

3. (c)
   create disharmony between different fields of law determining the allocation of risk and responsibility, such as contract and tort.

In the modern era, however, a more incremental, analogical, multifactorial approach has developed for determining liability in cases pure economic loss, claims based more on ‘salient’ features and less on the concept of proximity. The change is not because the proximity test was legally wrong, but in the belief that it was ‘conclusory and unhelpful.’

This new method of assessing liability has the advantage of giving the abstract notion of proximity some practical content.

In Caltex Refineries (Qld) Pty Limited v Satavar, for instance, the New South Wales Court of Appeal considered the common law liability of an employer to the wife of an employee who contracted asbestosis by washing her husband’s contaminated work clothes at home.

Allsop P (Simpson J agreeing) held that the proper approach called for a detailed analysis of the relationship between the parties, by reference to the interrelated, and sometimes overlapping, ‘universe of considerations’ affecting the appropriateness of imputing a legal duty to take reasonable care. His Honour identified seventeen potentially relevant factors that might assist in determining the existence of a novel duty of care, but does not suggest that it was compulsory to make specific findings about each consideration, or that the list was mandatory or exhaustive.

In Perre v Apand Pty Ltd the ‘vulnerability’ of the plaintiff emerged as an important criterion in cases involving the establishment of a duty of care to avoid pure economic loss. ‘Vulnerability’, in this context, does not mean that the plaintiff was likely to suffer damage if reasonable care was not taken, but refers to the practical inability of the plaintiff to protect his or herself against the consequences of negligent conduct.

In two recent commercial building cases, Woolcock Street Investments Pty Ltd v CDG Pty Ltd (Woolcock) and Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 and Anor (Brookfield Multiplex), the vulnerability of the claimant to risks of negligence was considered by the High Court to be a critical, but not decisive, indicator of liability.

The Traceys rely on Bryan. The applicant, by contrast, contends that the issues arise in a different factual context than Bryan, and are better resolved by reference to Woolcock and Brookfield Multiplex.

42. [42]
    The Appeal Tribunal then considered the law as it had developed in Bryan v Maloney (1995) 182 CLR 609 (Bryan 1995), Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor (2004) 216 CLR 515 (Woolcock 2004), and Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor (2014) 254 CLR 185 (Brookfield Multiplex 2014),^[27] expressing the ‘current legal position’ in the following manner:^[28]

Accepting that vulnerability is a, if not the, most important ‘criterion of liability’, does not mean that the Traceys cannot rely on Bryan based on the ordinary builder/client relationship. If there is no material factual difference, analogical reasoning should produce the same result based on the expectation that like cases will be treated alike.

It is clear that what ultimately determined the existence of a duty of care for economic loss in Bryan was the character of the relationship between the plaintiff and the defendant. That did not turn only on proximity or foreseeability, but depended on all relevant circumstances and policy considerations, such as the particular kind of economic loss involved (the decreased value of a house with inadequate footings), the nature of the property (a family home), the uncontradicted inference of reliance (or dependence) of the home owner and assumed responsibility (or control) of the builder, the discrepancy between their respective levels of knowledge, skill and experience in housing and construction, the lack of any ‘complication’ in the original building contract, which meant that finding liability in negligence did not allow the plaintiff to avoid or escape the operation of exclusionary clauses, and the inability to detect any significant signs of defect by reasonable inspection. 8

The Traceys were investing in a first home for an undefined period of time. It is not suggested that the relationship between the parties was any different to what usually exists between builder and client or that the contract excluded or limited liability for latent defects. Nor is it claimed that the Traceys were sophisticated clients with special acumen or experience allowing them to exercise any real control over the applicant or company in performing the works.

Without some supporting evidence, it is unrealistic to argue that they did not belong to a class of home owners generally unware (sic) of the need for, and how to obtain, adequate contractual protections that were against structural weakness that may have been undiscoverable for years.

It was reasonable for them to expect that their likely permanent dwelling would be built without substantial defects.

The relationship between the parties to this litigation, and its legal consequences, are not differentiable from Bryan solely by the fact that the applicant performed but was not a party to the agreement between the Traceys and Olindaridge whereas the builder of the defective house in Bryan contracted personally.

As a matter of both principle and policy, the applicant is answerable for his own defaults and cannot escape them by pointing to the company’s separate legal personality.

The relevant defect was admittedly the result of negligent work carried out by the applicant. It is no answer to say that he is just a subcontractor or employee immune from liability because Olindaridge failed in its own obligations to properly supervise him.

There are strong reasons for concluding that the applicant was better qualified and positioned than the Traceys to avoid, evaluate and safeguard against the financial risk posed by latent defects of the structure. This supports the existence of the applicants’ legal liability for breaching a personal duty of competence.

On this basis the Tribunal did not apply the wrong test of liability.

43. [43]
    Later, after considering the factual circumstances and the relevant submissions of the parties on the grounds of appeal raised before it, in Olindaridge 2016 the Appeal Tribunal concluded with the following observations:^[29]

The applicants’ (sic) final complaint at [39] of his written submissions is that the Tribunal erred in giving too much weight to the concepts of ‘reliance’ and ‘assumption of responsibility’ in finding that the Traceys were ‘vulnerable’ in the required sense. This argument too is devoid of merit.

The High Court did not consider it ‘necessary or profitable to attempt to define what does or does not constitute vulnerability’ in Brookfield Multiplex beyond observing that making contracts expressly providing for the quality of work expected, demonstrated the ability of the apartment owners, who ultimately controlled the body corporate, to protect against, and denies their vulnerability to, any lack of care by the builder and the non-performance of its contractual obligations.

Despite confirming the primacy of vulnerability of subsequent purchasers of dwellings in a post-Woolcock environment, the Supreme Court of Victoria nonetheless held itself bound to follow Bryan in Moorabool Shire Council v Taitapanui holding a surveyor who wrongly certified a defective building as sound liable to subsequent owners in possession when the defects became apparent, because of the claimant’s reliance, dependency, and limited ability to self-protect.

It is not reasonably arguable, therefore, that the Tribunal’s finding that the Traceys were vulnerable to the negligence of the applicant is plainly wrong.

44. [44]
    Thus, at least in the Appeal Tribunal the position was then that a builder owed a home owner a duty of care and as such could be held liable in negligence.
45. [45]
    The issue of breach of duty by a builder in undertaking building work then returned to the Appeal Tribunal in 2019, the findings of which were delivered in Cerda 2020.
46. [46]
    Whilst not an issue which arose at first instance, it became clear when on appeal that the written contract between the parties did not comply with the requirements of Schedule 1B of the QBCC Act because it was not signed. As the Appeal Tribunal noted it:

In our view the s 13(5) and s 14(10) of Schedule 1B are clear on their face. A regulated contract that is not in writing, signed by the parties and dated is of no effect, with the consequence that the contract is void and unenforceable by either party. These minimum mandatory requirements are neither difficult for builders and building owners to comply with nor onerous in circumstances where persons contract for the performance of domestic building work. If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts.^[30]

47. [47]
    Having explained the reasoning behind that observation, and thus concluding that the contract was of no effect,^[31] the Appeal Tribunal then expressed the following as the consequence arising therefrom, part of which I referred to earlier herein:

The learned member proceeded on the basis that the contract was valid and enforceable and determined the rights of the parties accordingly. In so doing the member erred in law and in fact. The parties’ rights fell for determination not under the contract, but in accordance with the Civil Liability Act 2003 (Qld) and the relevant principles relating to breach of duty and restitution. We will address the consequences of that error later in these reasons.^[32]

…

We have determined that the contract entered into between the parties did not satisfy the requirements of the QBCC Act and as such was of no effect. Accordingly, Ms Jacob’s claim against Mr Cerda is confined to one in negligence for breach of duty.^[33]

48. [48]
    Ultimately, on a consideration of the factual circumstances and the evidence before it, in Cerda 2000 the Appeal Tribunal found the builder had breached that duty and so was liable in negligence for damages to the home owner.^[34] Such was consistent with the finding of the Appeal Tribunal in Olindaridge 2016, notwithstanding that in Cerda 2000 the Appeal Tribunal did not, in its reasoning, refer to Olindaridge 2016.
49. [49]
    However, notwithstanding this finding and conclusion of the Appeal Tribunal in both Olindaridge 2016 and Cerda 2000, respectfully in my opinion such is not consistent with a corresponding analysis and conclusion of the Queensland Supreme Court which was subsequent to Olindaridge 2016 but prior to Cerda 2000, nor is it consistent with subsequent conclusions in the Queensland Court of Appeal.  Those conclusions arose from a consideration of the issue of vulnerability. It is apparent that, whilst in Olindaridge 2016 the Appeal Tribunal considered the law in terms of the issue of vulnerability, in Cerda 2000 it did not. It is a critical aspect of the argument and thus I will discuss it at some length.

50. [50]
    Vulnerability has been held by the superior Courts to be one of the salient features of negligence, that being one of the causes of action is issue in the present matter. It was last considered in terms of negligence and builders by the High Court in Brookfield Multiplex 2014
51. [51]
    Whilst considered in Olindaridge 2016, in Cerda 2000 the Appeal Tribunal did not address the reasoning of the High Court in Brookfield Multiplex 2014 nor did it consider the reasoning of the Queensland Supreme Court in Mousa v Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49 (Mousa 2019), a decision which came after Olindaridge 2016 which applied the law in terms of vulnerability as confirmed in Brookfield Multiplex 2014 on the question of a builder’s liability in negligence to a home owner, in that case specifically the nominee to the building company such being circumstances very similar to those in Olindaridge 2016. The reason for that may be that Olindaridge 2016, Brookfield Multiplex 2014, and Mousa 2019 all involved the existence of a building company and so was distinguishable on the facts. However as I will discuss it in the paragraphs that follow here, in my opinion it is all applicable and relevant caselaw to a determination of whether the respondent in the present matter before me owed a duty of care to the applicants.
52. [52]
    The same issue arose once again for the Tribunal at first instance relatively recently in Judd v McPhail [2022] QCAT 125 (Judd 2022), that matter not involving a building company, the dispute being between a home owner and a builder operating in his personal capacity as a sole trader, that being the circumstances between the applicant and the respondent in the present matter. Like Olindaridge 2016, but unlike Cerda 2000, the decision in Brookfield Multiplex 2014 and the issue of vulnerability was considered by the Tribunal in Judd 2022. Like both Olindaridge 2016 and Cerda 2000, the Tribunal once again found that the builder owed a duty to the homeowner and so the matter was determined with reference to the Civil Liability Act 2003 (Qld).
53. [53]
    Therein, the reasoning of the Tribunal started with the premise that the relationship of a builder to a homeowner is a special category of relationship whereby a duty of care is owed by the builder to the homeowner, and as such a duty of care, being the foundation for a cause of action in negligence, is found.^[35] Such was said to be on the basis of the state of the law as established in Bryan 1995.
54. [54]
    The Tribunal held that the home owner, Ms Judd, was vulnerable in that she could not have protected herself from the risks associated with the builder failing to undertake the works in a competent manner. This was on the basis that it was considered that the home owner was not a sophisticated commercial property investor, but rather she was a home owner who appeared to have had little or no experience or expertise in construction matters and as such she would not have been alerted to, nor appreciated the significance of, the availability of protections that a contract may have afforded. The Tribunal considered she fell into the class of home owners generally unaware of the need for, and how to obtain, adequate contractual protections that were against structural weakness and who expect building work to be undertaken without substantial defects.^[36] In doing so the Tribunal followed the Appeal Tribunal in Olindaridge 2016.
55. [55]
    One might suggest that the applicants before me are the same as Mrs Judd and accordingly I should reach the same conclusion, following Olindaridge 2016 and Cerda 2000.
56. [56]
    However, in my opinion, respectfully, the findings and views expressed in these decisions do not accord with the current state of the law as it has been established in the long line of authority from the High Court of Australia, starting with Bryan 1995 most recently confirmed in Brookfield Multiplex 2014, and then continued in the Queensland Supreme Court in Mousa 2019, subsequently in that Court in Wilmar Sugar Australian Limited v Queensland Sugar Limited [2019] QSC 116 (Wilmar Sugar 2019), and most recently in that Court in Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd (2021) 7 QR 234, [2021] QSC 74 (Mallonland 2021), subsequently affirmed on appeal in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2023] QCA 24 (Mallonland 2023).^[37]
57. [57]
    All these decisions concerned the question of whether a duty of care was owed in circumstances were a contractual protection mechanism was available, such being the premise in the present circumstance notwithstanding that the contract between the applicants and the respondent was of no effect.
58. [58]
    As I have noted it, the findings in Olindaridge 2016, and in turn Judd 2020, were premised on an affirmative application of Bryan 1995. However, in my opinion such is not reflective of the current state of the law. In that regard, two observations from High Court decisions subsequent to Bryan 1995 are relevant and should not be overlooked.
59. [59]
    In Woolcock 2004 McHugh J said this of Bryan 1995: ^[38]

… the only ratio decidendi that can be extracted from Bryan v Maloney … is that the builder of a dwelling house owes a duty to a subsequent purchaser who relies on the skill of the builder to protect that person from reasonably foreseeable decreases in value resulting from latent defects in the house. 

60. [60]
    In Brookfield Multiplex 2014, whilst presenting his decision and reasons separately from the remainder of the Court but in essence concurring therewith, Gageler J observed:^[39]

Part of the difficulty encountered by the Court of Appeal in the present case was in discerning the principle for which Bryan v Maloney remains authority after Woolcock Street Investments Pty Ltd v CDG Pty Ltd. 

The Current State of the Law

61. [61]
    As I understand it, the current state of the law is that a builder does not owe a duty of care to an original owner of a building which the builder has constructed for the owner. This is because the owner is not vulnerable to loss occasioned by any wrong that might be committed in construction of that building in terms of defective work. The reason being that the home owner is not vulnerable in the sense of loss because the owner is able to protect itself from such loss by the means of a building contract.
62. [62]
    Such is the effect of the reasoning of the High Court in 2014 in Brookfield Multiplex 2014.^[40] A passage from the joint reasons therein of Hayne J and Keifel J, as her Honour then was, is apposite given the argument raised by the applicants as to them simply relying on the respondent as a builder to have identified the relevant colour of the roof sheeting. It is as follows:^[41]

It may be assumed, without deciding, that the developer and the purchaser of a lot … relied on the builder to do its work properly. … Because these parties could not check the quality of what the builder was doing, it can easily be said that each relied on the builder to do its work properly.

Reliance, in the sense just described, may be a necessary element in demonstrating vulnerability, but it is not a sufficient element. As noted earlier, vulnerability is concerned with a plaintiff’s inability to protect itself from the defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.

It is neither necessary nor profitable to attempt to define what would or would not constitute vulnerability. It is enough to observe that both the developer and the original purchasers made contracts…. The making of a contract which expressly provided for what quality of work was promised demonstrates the ability of the parties to protect against, and denies their vulnerability to, any lack of care by the builder in performance of its contractual obligations.

63. [63]
    There is one other passage of the reasoning in that matter which is helpful in understanding the law as it relates to the circumstances the applicants have found themselves in. It is within the joint reasons of Crennan, Bell, and Keane JJ. Having cited certain passages from the reasoning in the earlier decision in Woolcock 2004 their Honours made the following observations: ^[42]

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 of 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. ^[43]

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.

64. [64]
    The references to the statutory regime and statutory warranties to which their Honours were referring is the equivalent of the Home Warranty Scheme enacted in Queensland under the QBCC Act, and as relevant in this proceeding the statutory warranties enacted under Schedule 1 B of that legislation to be incorporated into every regulated contract. The latter is a relevant part of the statutory scheme the Queensland Supreme Court was concerned with in Mousa 2019.
65. [65]
    Whilst such a scheme and warranties may protect any subsequent owner of the applicants’ property should they sell it, they do not protect the applicants. This is because of the absence of an effective contract entered into between them and the respondent. But the absence of same does not mean that they can be considered to have been without protection and thus can revert to the law of tort. This is because it was incumbent on them, just as much as the respondent, to give effect to the requirements of the legislation and ensure that the contract was put into writing. As the Appeal Tribunal put it in the passage I extracted from Cerda 2000 at paragraph [44] in these reasons

These minimum mandatory requirements are neither difficult for builders and building owners to comply with nor onerous in circumstances where persons contract for the performance of domestic building work.

66. [66]
    However it may be observed that, contrary to that observation, at least in part, the observation of the Tribunal at first instance in Judd 2022 was that the home owner was vulnerable in that she would not have been alerted to, nor appreciated the significance of, the availability of protections that a contract may have afforded.
67. [67]
    Returning once again to the words of the Appeal Tribunal in Cerda 2020, to which I referred earlier in these reasons:

If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts.

68. [68]
    A similar observation, but one with a more expansive point being covered, was made by the learned Member in Clarke v Queensland Building and Construction Commission [2020] QCAT 88:^[44]

More to the point, level 2 regulated contracts are significant contracts. The statutory requirement for them to be in writing, dated and signed by or on behalf of both parties is there for a self-evident reason – to minimise disputes, of which the current matter is an example, about the terms of such contracts. There is obviously a consumer protection element to the evident policy of the legislation, but there is also a broader public interest in the minimisation of disputes the resolution of which, through publicly-funded mechanisms such as the Commission’s and Tribunal’s review processes, comes at a cost to the general public. It is prudent for owners entering into significant arrangements with builders to ensure they have a written contract signed by both parties and dated. Parliament’s plain intention is that owners or builders who fail to observe that requirement do so at their peril.

69. [69]
    Such comments are apposite to the present circumstances before me.
70. [70]
    In my opinion, such is consistent with the manner in which the Queensland Supreme Court dealt with the issue of a claim in negligence against a builder in Mousa 2019. Therein Henry J considered the development of the law from Bryan 1995 up to and including Brookfield Multiplex 2014 in a similar manner to that considered by the Appeal Tribunal in Olindaridge 2016, and at least in part in Judd 2022. Having considered that caselaw, notwithstanding he found it not to be analogous to the circumstances in the matter before him, his Honour made this observation:^[45]

The [home owners] were able to safeguard the proper construction of their building by the mechanism of a building contract. They were not vulnerable to the adverse consequences of a failure of adequate supervision because, regardless of who was specifically responsible for that failure, they could protect themselves from such adverse consequences via the contract.

71. [71]
    His Honour then later concluded with the following observation, immediately thereafter citing the passage from Brookfield Multiplex 2014 which I have extracted in paragraph [63] herein:^[46]

… it is elementary, even in the domestic building setting, that the building contract is a means by which owners are well able to protect themselves against economic loss.

Importantly, the authorities do not suggest vulnerability is assessed by reference to whether the steps actually taken to protect against economic loss have in hindsight been effective. If that were so the determination of the existence of an action in negligence would be a lottery. The focus in assessing vulnerability is necessarily upon whether a plaintiff was able to take protective steps. As Crennan, Bell and Keane JJ observed in Brookfield Multiplex:

“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 loss.”.

72. [72]
    In conclusion of his reasoning in that matter, his Honour then made this statement: ^[47]

The unfortunate reality for the [home owners] is that they were well able to take steps to protect themselves financially from disappointed expectations. …. They negotiated aspects of the building contract before contenting themselves and deciding to enter into it. They could have but did not insist upon additional contractual protection such as a Director’s guarantee.

73. [73]
    It may also be observed that unlike the Appeal Tribunal in Olindaridge 2016 that gave emphasis to the decision of the Victorian Supreme Court in Moorabool Shire Council v Taitapanui, a decision which it appears from the reasoning therein that much emphasis and persuasive value was placed on, as I have noted it in paragraph [43] herein, Henry J in Mousa 2019 did not give it the equivalent degree of relevance and meaning. His Honour effectively dismissed it as being irrelevant given the extent to which the homeowners could have obtained, and did obtain, the requisite degree of protection and thus absence of vulnerability by having entered into an enforceable contract.
74. [74]
    The state of the law established by the High Court in the series of decisions from Bryan 1995 to Brookfield Multiplex 2014 was continued to be dealt with after Mousa 2019 in Queensland in Wilmar Sugar 2019, Mallonland 2021, and then on appeal in Mallonland 2023. Although not building cases, aspects of the reasoning in both the Supreme Court and subsequently the Court of Appeal is apposite to the building cases and the issue of whether a builder owes a duty of care to an original home owner to whom it is contracted to carry out building work.
75. [75]
    In my opinion it is not necessary to enter into any discussion on Wilmar Sugar 2019 it being sufficient to merely have noted its existence. In Mallonland v Advanta Seeds, similar to Davis J in Wilmar Sugar 2019, and Henry J in Mousa 2019, before turning to the particular contractual matrix that affected the case before him Jackson J embarked on a consideration of the development of the law of negligence for economic loss addressing many of the cases touched on by the Appeal Tribunal in Olindaridge 2016 together with many others. In doing so it led him to focus on two aspects of that development, namely ‘vulnerability’ and ‘coherence’, making these observations:

It is not in dispute that recent binding statements of principle by the High Court relevant to the existence of a duty of care in the present case require identification of the “salient features” that might give rise to a duty of care or that two important features are the “vulnerability” of the plaintiffs and the “coherence” of the disputed duty of care having regard to the existing legal frameworks that regulate or affect the relationships among the defendant, the plaintiffs and other relevant persons. It is convenient to begin with vulnerability.

Vulnerability concerns the ability of a plaintiff to protect itself from economic loss or damage caused by lack of care by the defendant.

As a step in the analysis, the present case may be compared with a “string” or “chain” of contracts for the sale of goods. The defendant as producer of the contaminated MR43 seed sold it to a distributor who re-sold it to one of the relevant growers being one of the plaintiffs.

…

… Each of the plaintiffs was a buyer under a sale that was subject to sale of goods legislation that implied a condition that goods bought by description should be of merchantable quality unless such a term was excluded by the agreement

…

where a plaintiff bought the contaminated MR43 seed on a straight-out sale from a distributor who had bought that seed straight out from the defendant, if the MR43 seed was not of merchantable quality, any loss or damage suffered by the plaintiff caused by breach of the implied term of merchantable quality may have been recoverable from the distributor as seller of the contaminated MR43 seed as compensatory damages, unless such term was excluded by agreement. Correspondingly, the distributor as buyer from the defendant may have been entitled to recover damages suffered by the distributor, including liability to the plaintiff, caused by breach of the implied term of merchantable quality on the distributor’s purchase of MR43 seed from the defendant, unless such term was excluded by agreement. However, in that analysis, the common law would not give the plaintiff a right to damages for breach of contract against the defendant, because there was no privity of contract between them.

Alternatively, where a plaintiff bought the contaminated MR43 seed from a stockist distributor, again the contract of sale was made by the plaintiff as buyer and the stockist distributor as seller. If the MR43 seed was not of merchantable quality, by similar reasoning, any loss or damage suffered by a plaintiff caused by breach of the implied term of merchantable quality may have been recoverable from the distributor as seller of the contaminated MR43 seed as compensatory damages, unless that term was excluded by agreement.^[48]

76. [76]
    Having undertaken that analysis, his Honour made the following observations:

On this analysis, at least in theory, each of the plaintiffs might have been able to protect itself from the risk of the loss or damage they allege that they have suffered by an appropriate contractual term in the contract under which it purchased or acquired the contaminated MR43 seed from the relevant distributor.^[49]

…

This analysis may be contrasted with the vulnerability of the plaintiff in Perre v Apand Pty Ltd …. In Perre, the plaintiff’s loss was suffered because quarantine regulations prevented the plaintiff’s land from being used to grow potatoes. The regulations were introduced because the defendant’s activities on nearby land caused a disease outbreak on that land. The quarantine regulations prevented the use of any land for growing potatoes within a certain radial distance from the outbreak land. There was nothing that the plaintiff could have done to protect his position. He was held to be vulnerable to the defendant’s breach of the standard of care. ^[50]

77. [77]
    Jackson J then turned to the decision in Woolcock 2004 noting the finding in that matter was that the end user was able to protect itself by having been able to obtain contractual warranties.   Of such circumstance, Jackson J made this observation which in my opinion is directly relevant to the issue which arises in the present circumstances, such being where the applicants had the ability to obtain contractual warranties and so as the contracting party were not vulnerable.

There may be an air of impracticality in the conclusion that any of the plaintiffs in the present case could or should have protected itself as buyer by extracting an appropriate contractual term on purchasing the contaminated MR43 seed from the distributor. There were only two manufacturers of commercial grain sorghum seed in the Australian market, being the defendant and Pioneer Seeds. The defendant sought to exclude liability for defective seed on sales of its MR43 seed having regard to the terms of the stockist agreements and the terms on the bags. There is no evidence that the distributors did or did not do the same on re-selling MR43 seed to any of the plaintiffs. And when a buyer of goods is moved to purchase by the reputation of the producer or manufacturer, and the goods are packaged and sold under a particular brand name as possessing particular represented qualities, the identity of the distributor may be of no real importance in the buyer’s decision to purchase. ^[51] 

78. [78]
    Relevantly, his Honour’s analysis of the law and the issue of vulnerability then turned to the High Court’s decision in Brookfield Multiplex 2014, the decision which was in effect germane to the outcome in Mousa 2019 and subsequently in Wilmar Sugar 2019. His Honour noted the plurality of the Court therein observed that reliance may be a necessary element in demonstrating vulnerability, something the applicants appear to be saying, but it is not a sufficient element, and that vulnerability is concerned with the plaintiff’s inability to protect itself from the defendant’s want of reasonable care. In particular he noted that the plurality stated “It is neither necessary nor profitable to attempt to define what would or would not constitute vulnerability.”  ^[52]
79. [79]
    Ultimately, whilst not expressing it in such direct terms, Jackson J concluded that in the matter before him the buyer of the seed was vulnerable in that it could not have effectively taken steps, by way of obtaining a contractual warranty, to protect itself. But yet, he held that the seller did not owe a duty of care, such being premised on the application of the principles necessary for coherence of law between contract and tort. In doing so his Honour observed that the leading case as to the effect of incoherence on a putative duty of care is Brookfield Multiplex 2014.^[53]
80. [80]
    In Mallonland 2023, the Queensland Court of Appeal recently considered the findings and reasoning of Jackson J. Much of that which the Court was required to consider goes beyond the issues in the present circumstances and it suffices to note that the Court did not disagree with the reasoning and findings of Jackson J at first instance.
81. [81]
    On the issue of whether the plaintiffs in that matter were vulnerable in the sense of a negligence action, Morrison JA, with whom Bond JA and Williams J both agreed, expressed his view that he considered Jackson J had found there was vulnerability.^[54] In concluding his analysis of the question as to whether a duty of care was owed, Morrison JA subsequently made this short observation returning once again to Brookfield Multiplex 2014:^[55]

The High Court has shown a reluctance to expand the general concepts of duty of care to novel cases, and especially where they claim only pure economic loss.

Thus, in Brookfield Multiplex French CJ said:

“Abstracting the reference to proximity in Bryan v Maloney, the decision adverted to factors adverse to the recognition of a duty of care for pure economic loss other than in special cases. The special cases would commonly, but not necessarily, involve an identified element of known reliance or dependence on the part of the plaintiff, or the assumption of responsibility by the defendant, or a combination of the two. The contract between the prior owner and the builder in that case was “non-detailed and contained no exclusion or limitation of liability”. The subsequent owner would ordinarily be unskilled in building matters and inexperienced in the niceties of real property investment. Any builder should be aware that such a subsequent owner would be likely to assume that the building had been competently built and that the footings were adequate. Those considerations may be seen as elements of the notion of “vulnerability”, which has become an important consideration in determining the existence of a duty of care for pure economic loss. In this context, it refers to the plaintiff’s incapacity or limited capacity to take steps to protect itself from economic loss arising out of the defendant’s conduct.”

82. [82]
    In separate reasons, Bond JA, with whom Williams J also agreed, and with whom Morrison JA expressly agreed in terms of the additional comments made by Bond JA beyond his own reasoning, also made a number of observations concerning the question of identifying a duty of care. In my opinion these are apposite to the present circumstances. His Honour expressed his reasoning in this way: ^[56]

It must first be noted that the question whether Advanta owed a duty of care to the farmers who planted the seed cannot be resolved in the abstract, and as so framed. As Gageler J recognised in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 “[a] duty of care at common law is a duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another specified person, or to a person within another specified class.”218 Any contended for duty of care must be capable of definition at least by reference to (1) the person or persons who owe the duty, (2) the person or class of persons to whom they owe the duty, and (3) the kind of risks of harm they must take reasonable care to minimise or avoid. These elements at least must be clear before a determination can be made as to whether the duty exists.

83. [83]
    Having then considered and discussed the requisite incremental approach to discerning the existence of a duty of care in novel cases, Bond JA made this observation:^[57]

Accordingly, in order to determine whether the common law should recognise the existence of an alleged duty of care in a novel case, the appropriate course is to seek to identify appropriate starting points in terms of principle and policy from existing case law and then to discern, having regard to salient features of the novel case, whether there is reason to recognise a duty in that case. As Murphy JA and Edelman J observed in Swick Nominees at [387]:

“… McHugh J [in Crimmins] favoured, and the law has developed, an incremental approach where reasoning proceeds by reference to analogous cases. As Lord Devlin said of the extension of duties of care in Hedley Byrne, ‘the first step in such an enquiry is to see how far the authorities have gone, for new categories in the law do not spring into existence overnight’.”

The appropriate starting point in terms of principle appears in the judgment of Crennan, Bell and Keane JJ in Brookfield Multiplex at [127], where their Honours observed (citations omitted):

“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 Willemstadt, 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 L 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.’”

The significance of that articulation of principle for the present case is that it establishes that the recognition of the alleged duty of care would be to recognise an exception to that general rule. …. It follows, therefore, that the examination of the salient features of the present case is a search for justification for departure from that general rule.

84. [84]
    His Honour then turned his focus to propositions concerning the policy of the law as other useful starting points. One of these was the extent to which certain guarantees were relevantly provided under the Australian Consumer Law to end users, such as the guarantee that goods would be of an acceptable quality. In that regard his Honour made this observation, once again returning the reasoning of the High Court in Brookfield Multiplex 2014:^[58]

Accordingly, a further policy question is whether the common law of the tort of negligence should extend the legal protection available to end users of manufactured goods notwithstanding the limitations imposed by the legislature by the definition of “consumer” or by the considerations adverted to in ss 54(2) and 54(3) of the Australian Consumer Law.

The judgment of Crennan, Bell and Keane JJ in Brookfield Multiplex also provides an appropriate starting point in relation to each of the policy questions just mentioned. Their Honours acknowledged –

(a) at [121]:

“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.”

(b) at [132]:

“… 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.”

(c) at [133] and [134]:

“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.”

85. [85]
    Bond JA then concluded with these comments:^[59]

Although it would be wrong to suggest that there is some form of neat compartmentalisation between contract and tort, these passages suggest the primacy of the law of contract as the remedial response provided by the common law in circumstances such as those revealed by the present case. They also recognise that the fact that a particular area of commercial conduct has been the subject of legislative regulation may influence the choices made by judges in the development of the common law. Common law courts should eschew the temptation to encroach into areas which would require a claim to political legitimacy and, accordingly, are more properly the purview of the executive or legislative arms of government.

Notably, in Brookfield Multiplex, Gageler J observed:

“[T]he plurality in Woolcock Street Investments noted that the actual decision in Bryan v Maloney had by then been “overtaken, at least to a significant extent, by various statutory forms of protection for those who buy dwelling houses which turn out to be defective”. The Court of Appeal in the present case referred in detail to the current statutory regime in New South Wales. If legal protection is now to be extended, it is best done by legislative extension of those statutory forms of protection.”

86. [86]
    On the basis of this extensive line of judicial reasoning, as I will discuss later in these reasons, to the extent the applicants press their claim purportedly reliant on negligence, their claim cannot succeed.

The Evidence

87. [87]
    The applicants presented two witnesses, each confirming written statements given by them and previously filed in this proceeding, namely the female applicant Mrs Krystal McSwan,^[60] and a Mr Michael Freier of North Coast Carpenters who had given the applicants a quote of $30,742.80 to replace the roof.^[61] 
88. [88]
    They were each presented for cross-examination however none was engaged in by the respondent.
89. [89]
    The applicants also tendered, without objection, recent aerial photographs of their property obtained from a real estate sales website, asserting these photos clearly show the difference in colour between the carport roof and the existing house roof.^[62]
90. [90]
    The content of Mrs McSwan’s statements was, in terms of the narrow issue, prolix. Her second statement was not of any assistance to me, it simply responding to Mr Weaver’s written statement and not contributing anything new beyond that which was already canvassed in her first statement. On my reading of her statements, and having heard from Mrs McSwan during the hearing, the following is in my opinion the relevant key aspects of the evidence for the applicants.

    1. (a)
       There was no written contract document.
    2. (b)
       Mrs McSwan did not notice the colour difference during construction or on completion.
    3. (c)
       The difference in the colour between the new carport roof and the existing house roof was not noticed until after the work was completed at the end of March 2020 when Mr McSwan came home from working away.
    4. (d)
       The applicants did not contact the respondent until December 2020 to raise the issue because Mrs McSwan worked full time, her mother was of ill health, of  the effects of Covid pandemic, and she wanted to get “a second opinion from another builder that there were indeed different colour bond (sic) colours”.^[63]
    5. (e)
       Mrs McSwan had a text message exchange with the respondent said to have occurred in March 2020, wherein the following was stated:^[64]

Mr Weaver 11:55 am Heading to order the roof now, your wanting it the same colour deep ocean as well as the fascia and gutter?

Mrs McSwan 12:22 pm Yes please

6. (f)
   In regard to that exchange Mrs McSwan said:

I replied “yes please” referring to wanting it to all match the house roof including fascia and gutter being the same like the house.

While we did not tell Luke (our builder) the colour of the roof on our existing house (because we did not know it at the time), I expected that he, being a builder, would know or would have the means of finding out the colour of the existing roof. I took his word for it, as he is the builder and that is what we are paying him to take care of. ^[65]

… We did not know it at the time, but we now know the actual colour of the roof on our existing house is colour bond (sic) Ironstone. I have included the receipt … of the colour bond time “Ironstone” which was purchased for our house when it was built.^[66]

7. (g)
   As to the issue of the identification of the colour by Mr Weaver’s observation of the use of Deep Ocean coloured spray paint on the existing house roof, Mrs McSwan said:

Luke is referring to a 250ml spray can of paint that Jeremy and I purchased from Bunnings to repaint the roofing screws, after Luke or one of his workers told my husband Jeremy in person that out house roof screws were going rusty that they noticed when putting the trusses on the carport up. We did not know the name of the colour bond (sic) when we went to buy the can, so we picked one that looked similar. It looked different when we sprayed it but assumed it would dry the same. We did not get back on to the roof later to check the colour. …^[67]

91. [91]
    As to the statement and quotation of Mr Frier, as I understand the applicants’ case they rely on this evidence to support their claim on the basis that this work is required to remedy the error made by the respondent because it has, in the words of Mrs McSwan:

… devalued our house because it looks absolutely ridiculous.^[68]

92. [92]
    When I pressed Mrs McSwan on what evidence she has of the house being devalued, she could not offer anything other than to say it is her belief that is so because she would not buy it if it was for sale given the differences in colour.
93. [93]
    Despite the respondent asserting at the start of the hearing, when I asked whether he required Mr Frier for cross-examination, that he considered the quoted price to be excessive, he did not challenge Mr Frier under cross-examination in that regard or put any alternative proposition to Mr Frier in terms of remedying the complaint.
94. [94]
    The respondent presented only himself as a witness, confirming his written statement previously filed.^[69] He was also presented for cross-examination. Mrs McSwan, being the one charged with the task of conducting the applicants’ case, attempted some cross-examination of Mr Weaver. I could readily see she was struggling to articulate her questions and accordingly I assisted her in formulating the questions for her in terms of what would be expected in cross-examination and I was understanding she was wanting to raise with Mr Weaver. The respondent did not raise any objection to me doing so.
95. [95]
    Similar to Mrs McSwan’s written statements, the content of Mr Weaver’s statement was prolix given the very narrow issue. The structure of some of his sentences also was at times challenging to follow his meaning. On my reading of that statement and having heard from him during the hearing I discerned the following to be the key aspects of his evidence:

    1. (a)
       There was no written contract.
    2. (b)
       He knew at the time he was engaged that the applicants wanted the same colour used on the carport that is on the house, and that what has been constructed is actually different colours.^[70]
    3. (c)
       Also raising the same exchange of text messages to which Mrs McSwan referred and I extracted in paragraph [90](e) herein, although on this occasion Mr Weaver identifying the date of those messages as being 6 March 2020, he makes these statements:^[71]

Order for roof sheets was place same day.

6 days passed without Applicant realising their mistake in colour choice name.

Roofing arrived and was sitting at site for 6 days with colour exposed before it was placed onto roof structure, still Applicant didn’t realise their mistake in colour choice.

This is in no way the Respondent’s fault. Colour name was used by Respondent and confirmed by Applicant. The applicant has sent confirmation of the colour in writing.

Applicant states that they did not know at the time – 6^th March 2020 – what the colour of their own house roof was, however has supplied evidence that they did in fact know the colour through proof of purchase of colourbond sheeting ordered in their name from Innisfail Hardware in September 2014.

Applicant states they expected Respondent to know the colour of the sheeting…

It would be unprofessional to assume a colour of a home owner’s dwelling/roof and not confirm the colour name before ordering materials. Due to harsh weather conditions in Far North Queensland with temperatures reaching 42 degrees some months and heavy rainfall in others, these environment factors can cause colourbond sheeting to fade over time. Hence why the confirmation text message was sent before order was placed.

4. (d)
   Later he also makes this statement:^[72]

If the Applicant had of confirmed Ironstone colour, the brand new Ironstone roof would have been a different look/colour to the existing Ironstone roof due to the weather elements and consideration of the sheets being made in a different batch.

5. (e)
   As to the absence of prompt notification to him of the complaint regarding the colour difference, he said:^[73]

Respondent and team were at said property sheeting the roof for THREE consecutive days. … Also the Respondent and team returned to the property TWICE to finalise the job 12 days after whole roof was sheeted, which was AFTER Jeremy had returned home and day 20 after whole roof was sheeted to add the extra screws and cappings.

Discussion on the Evidence

96. [96]
    When each party was afforded the opportunity to present closing submissions neither took up that opportunity to direct me to what parts of the evidence I should accept or I should reject. Each effectively just repeated their respective cases in terms of the outcomes they sought. Accordingly, the discussion that follows here is based on my consideration of the evidence without any such input.

Findings of Fact

97. [97]
    In my opinion, the respondent’s evidence is highly persuasive. It demonstrates that he took appropriate steps to confirm with the applicants the colour of the roof sheeting and associated materials to be used in construction of the carport before he ordered it. Such is as should be expected of any competent builder. Upon seeking that confirmation and receiving it from the applicant’s Mrs McSwan, in my opinion it was entirely appropriate for him to proceed in ordering the material in Deep Ocean colour and ultimately constructing the carport using it.
98. [98]
    I am also persuaded by the facts as he has identified them, noting that they were unchallenged by the applicants, as to the time period in which the roofing material was on the job site unfixed, and then the time period in which the fixing occurred and he or his workers later attended the site, although at no time during which the applicants raised the issue of the material being the incorrect colour. It seems to me that the applicants had ample opportunity to have done so, but for an entirely unexplained reason did not do so.
99. [99]
    I do not accept the applicants’ argument, that because of full time work commitments, Covid issues, and other family matters, that they did not raise the issue with the respondent promptly. It does not explain why the issue could not have been raised very early when the material was first delivered or when it was being installed. As I noted it earlier, there is no evidence that Mrs McSwan noticed it at any time until it was raised with her by her husband. If the colour difference is such that, in Mrs McSwan’s own words “it looks absolutely ridiculous” such that it has devalued their house, it is surprising that Mrs McSwan did not raise it during construction.
100. [100]
     I thus infer that the colour difference must not have been obvious to her and, at least until the time her husband said something to the contrary, she thought it was the same. This inference is drawn not only from the fact of the absence of any such contrary evidence but from the evidence of Mrs McSwan herself. She spoke of her and her husband going to Bunnings to purchase the spray paint and selecting Deep Ocean as being what they thought the colour was. From this evidence, it is apparent that they thought it was Deep Ocean and had no reason to consider it to be something else.
101. [101]
     There are two other aspects of the evidence that persuade me in reaching the conclusions I have.
102. [102]
     Firstly, Mrs McSwan asserted that one of the reasons for the delay in raising the issue with Mr Weaver was that she wanted to get a second opinion as to the colour actually being different. There is no such evidence presented by the applicants of what that second opinion was, nor any evidence if it actually having been received, nor any submission as to why there is no such evidence. Mr Frier’s statement does not go that far. In the absence of such evidence, it seems to me that either no such second opinion was received, or if it was received the opinion was adverse to the applicants’ case.^[74]
103. [103]
     It seems to me that if an opinion from another builder was obtained, it would be consistent with that which Mr Weaver stated in his evidence as I have extracted it at paragraphs [95](c) and [95](d) herein, that being there would be a colour difference given the passage of time and the environmental effect on the house roof such that the colour could never have matched. It is notable that the applicants did not lead any evidence to challenge this comment by Mr Weaver, in particular it not being challenged by Mrs McSwan in her responsive statement.^[75]
104. [104]
     Secondly, whilst the applicants assert that they did not know at the time what the colour was, it is apparent that they at least had the opportunity at that time to have obtained such knowledge. It seems quite evident to me that if they were able to locate a copy of the original invoice for the supply of the material for the construction of the house, presumably from a related person given the name on the invoice is S. McSwan, for the purposes of Mrs McSwan giving her statement in this proceeding,^[76] given the asserted importance to them of having the new construction match the existing construction it seems to me it is something that they could have readily done at the time of having the carport constructed so as to have identified the relevant colour. Yet, it is apparent that they did not do so. But moreover they have not given any evidence in this proceeding as to why they could not have done so at the time.
105. [105]
     In all respects the applicants’ evidence is left wanting in terms of the requisite weight needed to tip the balance in their favour.

Application of the Relevant Law to the Evidence

The Action in Contract

106. [106]
     As noted and merely repeated here for convenience and completeness, in the absence of an effective contract the applicants do not have a cause of action in contract. Their claim turns to be decided for breach of duty and thus negligence, or in restitution.

The Action in Negligence

107. [107]
     In my opinion the observations from the long line of authority to which I referred at paragraphs [29] to [86] in these reasons are analogous to the circumstances as they existed between the applicants and the respondent, and it is upon this basis that the outcome of the apparent claim in negligence being pressed by the applicants can be disposed of, namely that the applicants cannot succeed in a cause of action in negligence.
108. [108]
     What this extensive judicial reasoning shows us is that ‘it is not what the applicants did that matters, it is what they could have done’. To put it in terms of the facts – it is not the fact that they entered into a contract that was of no effect that left them vulnerable, it is the fact that they could have, and moreover were required by legislation to have, entered into a contract reduced to writing that complied with the requirements of Schedule 1B of the QBCC Act that would have provided them with the benefit of the statutorily imposed warranties under that legislation, thus affording them protection against failure by the respondent to have done that which they say they assumed he would do, thus they were not vulnerable.
109. [109]
     In that regard it is apposite to return to the observations of Henry J in Mousa 2019 which I extracted in paragraph [71] herein, which for ease of reference and emphasis I once again extract:

… it is elementary, even in the domestic building setting, that the building contract is a means by which owners are well able to protect themselves against economic loss.

Importantly, the authorities do not suggest vulnerability is assessed by reference to whether the steps actually taken to protect against economic loss have in hindsight been effective. If that were so the determination of the existence of an action in negligence would be a lottery. The focus in assessing vulnerability is necessarily upon whether a plaintiff was able to take protective steps.^[77]

110. [110]
     In the same manner referred to by the Appeal Tribunal in Cerda 2020 to which I referred earlier, the applicants could have and should have insisted upon the contract with the respondents being reduced to writing in compliance with the requirements of the QBCC Act. Had they done so, as I have just noted it, they would have been afforded the protection of the statutory warranties, particularly that which required the respondent to have exercised due care and skill. This reflects a policy choice of the Legislature, such which for the purposes of the present discussion can be equated to the statutory protection provisions Bond JA was referring to.
111. [111]
     The corresponding and relevant words of the Appeal Tribunal in Cerda v Jacob should also be recalled as I have extracted them in paragraph [44] herein, the emphasis on this occasion being mine:

If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts.

112. [112]
     Accordingly, it could not be said that the applicants were vulnerable.
113. [113]
     The relevant protective step that could have been taken was the entry into a regulated contract in the manner required by Schedule 1B of the QBCC Act. Such reflects, in the words of Bond JA to which I have just referred a “particular area of commercial conduct … the subject of legislative regulation”. Had the applicants done so, they would have obtained and benefited from the statutory warranties and thus dealt with the issue of vulnerability as well as their asserted assumption of reliance upon the respondent as a builder.
114. [114]
     That being so, considering the entirety of this development of the law, extending beyond that which was considered in the reasoning and findings of the Appeal Tribunal in Olindaridge 2016 and the Tribunal in Judd 2022, in my opinion contrary to the position ultimately taken by the Appeal Tribunal in both Olindaridge 2016 and Cerda 2020 and the Tribunal at first instance in Judd 2022 it cannot follow that the respondent owed a duty of care to the applicants, even in the absence of an effective contract such absence arising solely by the operation of Schedule 1B s 14(10).
115. [115]
     In my opinion, if the contract had been reduced to writing in a manner that complied with the requirements of Schedule 1B of the QBCC Act, it would have afforded the applicants the protection of the statutory warranties because such would have been a term of the contract.^[78] In turn it would have created that requisite level of protection and so the absence of vulnerability. For this reason, even if the evidence was in their favour, the applicants cannot succeed in their claim against the respondent by way of a negligence action.

The Alternative Outcome

116. [116]
     If however I am wrong in my analysis and application of the law as I understand it to be, and I should have applied the manner in which the Appeal Tribunal dealt with the circumstances in Cerda 2020, in my opinion the outcome would be the same for the applicants. They would not be entitled to the relief they seek. This is for two reasons.
117. [117]
     Firstly, on the evidence it could not be found that the respondent breached a duty to ensure that the work was performed in a manner consistent with the applicant’s requirements. As I have noted it in paragraph [97] herein he took the proper and appropriate steps to request and receive confirmation from the applicants as to the requisite colourbond colour for the material in construction the roof.
118. [118]
     As to the alternative, that effectively being a claim in restitution, such being premised on what would be a reverse quantum meruit claim,^[79] once again even if the evidence were in their favour, applying the Bellgrove v Eldridge test the outcome would be the same. In my opinion, that test is applicable in particular the qualification as expressed by their Honours Dixon CJ, Webb and Taylor JJ that is the relevant aspect.
119. [119]
     It is the applicants’ argument that replacement of the roof to the carport with Ironstone colourbond material is that which is necessary to produce conformity. However I do not accept that as being correct. In my opinion it would be an entirely unreasonable course to adopt. This is for two reasons.
120. [120]
     Firstly there is absolutely nothing wrong with the roof as constructed. It is defect free. The applicants did not assert otherwise. Secondly, there is an absence of evidence to show that even if it were replaced it would result in conformity. Mr Frier’s evidence does not go that far. Whilst he uses the words “replace with new to match existing building Colourbond ironstone”, he does not state with clarity that there would be conformity. At best he has merely quoted to remove the Deep Ocean and replace it with Ironstone, such being the stated colour of the existing house.^[80] As Mr Weaver put it, something that was unchallenged by the applicants and in the absence of such I accept, the existing house roof colour would have deteriorated over time since it was constructed such that a match of colour could never be achieved.
121. [121]
     Thus, the applicants would be left only with a claim for diminution in value. However, whilst the applicants apparently pressed their claim based on what they say was a devalued property, as I have noted the evidence of Mrs McSwan in paragraph [92] herein there is simply no evidence of any diminution in value. Accordingly, there is no basis upon which they could succeed beyond merely nominal damages, which in this instance could in my opinion readily and properly set at $1.00.

Conclusion

122. [122]
     The respondent’s evidence is persuasive. It carries greater weight contrasted to the applicants’ evidence. In my opinion the respondent acted entirely appropriately in seeking express confirmation from the applicants as to the colour of the roof sheeting and associated material before ordering it. This is what a prudent builder would have done.
123. [123]
     Once the applicants, via the text message from Mrs McSwan, confirmed the colour of the carport roof sheeting they required to be Deep Ocean, the conduct beyond that point by the respondent was correct. He did not commit any wrong. Thus, there is no basis upon which the applicants became entitled to any form of compensation from him as a result of the material not being Ironstone in colour. The outcome of the contest between the parties which is this proceeding turns on that point alone.
124. [124]
     However, even if I am wrong about that and it could be found that the respondent should have identified with certainty the colour of the existing roof sheeting to the house as being Ironstone, and in failing to have done so failed to have carried out his work in an appropriate and skilful and without reasonable care and skill, thus leading to the assertion he was negligent, in the absence of a duty of care for same being owed to the applicants the respondent could not be held liable for such a wrong.
125. [125]
     Moreover, the applicants could not otherwise succeed in their action for compensation in the quantum they seek even if they could support their claim by a valid cause of action. The course they assert is required is simply an unreasonable one to take. As I have observed earlier in these reasons, in my opinion the best outcome they could achieve would be an order for nominal damages. But that is not the order I make in conclusion of this proceeding.
126. [126]
     For all the reasons given herein, the only proper outcome is for the applicants’ claim to be dismissed. There will be an order to that effect.

The Need for Legislative Reform

127. [127]
     Before finalising these reasons, for completeness I should make one further observation.
128. [128]
     To a reader of these reasons, it may seem odd and concerning that the applicants as homeowner, not being sophisticated and such falling within the ambit of such persons as the Tribunal put the homeowner in Judd 2022, may not know or realise that the contract had to be put in a form compliant with Schedule 1B of the QBCC Act. Nor may it be expected they would know that the contract they entered into would be of no effect in the absence of such having occurred.^[81] 
129. [129]
     It may also seem odd that, in such circumstances, their failure to have done so should result in them also then not having a right of recourse against a builder for negligence.
130. [130]
     I accept such a view as having merit. But, in the same manner as Bond JA described it in his reasoning in Mallonland 2023 to which I referred earlier, it is not for this Tribunal to fill the gap by effectively creating that liability by way of imposing a duty of care. Legislative reform is clearly required in this regard.
131. [131]
     One option is to provide a protective mechanism of a contract remaining enforceable by homeowners, thus affording homeowners at the very least the protection of the statutory warranties even in the event the contract is not reduced to writing such that it is only the building contractor who is effectively compromised by its failure to have reduced the contract to writing in a compliant manner.
132. [132]
     Another option, and in my opinion the preferable one, is to introduce legislation into Queensland which expressly provides for a duty of care to be applicable on builders in favour of owners of buildings to whom they are contracted to build. Such could and should readily also be inclusive of subsequent purchasers of those buildings. Similar legislation already exists in New South Wales in the form of the Design and Building Practitioners Act 2020 (NSW) which, under s 37 therein, expressly provides for a duty cast upon a builder to exercise reasonable care to avoid economic loss caused by defects, such being owed to an owner whether or not the construction work was carried out under a contract with the owner.
133. [133]
     Such would obviate the dilemma that continues to be faced in determinations of matters such as these given the confusion that arises in application of the caselaw which has been the subject of considerable discussion at various times and which brought about a body of conflicting views, particularly since the decision in Bryan 1995, a good example of which is readily seen in the differing positions taken by the Appeal Tribunal in Olindaridge 2016 and the Queensland Supreme Court in Mousa 2019 both of which were based in very similar circumstances.

134. [134]
     As Callinan J aptly put it in his reasons published separately from the majority:^[82]

In this area of claims, for economic loss, an evolving area of the law, cases will in practice only be resolved by closely and carefully examining the facts to ascertain whether a sufficiency of factors of a sufficient degree of relevance and importance has been demonstrated. ….

It is unnecessary to deal with cases in other jurisdictions in any detail. They are summarised in the judgment of Brennan J in Bryan v Maloney. That summary indicates that the question for decision here has been given different answers in different jurisdictions at different times.

What the debate in this appeal does show however is that this particular area is better regulated, as it has already in many respects and places been, by legislators.

135. [135]
     The different answers and the debate to which his Honour was referring almost 20 years ago still continues today. It would assist to have this finalised by the requisite legislative reform.