NSW government has enacted the Design and Building Practitioners Act 2020 (NSW) (‘the Act’) in response to the perceived building crisis state-wide. The Act introduces a range of statutory obligations on builders, architects, engineers and other workers in the building industry. The new Act provides that anyone who performs construction work will owe a new statutory
duty of care to both current and subsequent property owners.

Statutory duty to exercise reasonable care

The Act extends the duty of care owed by persons in the construction industry to property owners in or related to a building for which the work is done, and for any financial loss arising from the construction work.

Section 37 makes it clear that the duty is owed to each owner, and to all subsequent owners irrespective of whether the work was carried out under a contract with the owners or otherwise.

Retrospective operation & limit of the periods

The duty of care operates retrospectively if the loss first became apparent within the 10 years immediately before the commencement of s 37 of the Act. That means the duty of care may be deemed to exist between a property owner and building practitioner, The Act makes it clear that the limitation periods under the Limitations Act 1969 (NSW) and s 6.20 of the Environmental Planning and Assessment Act 1979 (NSW) still apply.