June 15, 2020 at 4:00 pm #231175AbbeyMember
Great to see this Bill pass through recently. I can’t see if it is retrospective and if so how far back. Can you advise?
AbbeyJune 18, 2020 at 8:36 pm #231432Amanda FarmerExpert
Yes, exciting times.
In short, yes it is retrospective.
Owners may enforce this new statutory duty of care in respect of existing buildings where the loss first became apparent within the last 10 years.
See Schedule 1 to the Act here: https://legislation.nsw.gov.au/#/view/act/2020/7/sch1
Specifically, clause 5:
5 Application of duty of care provisions to existing buildings and contracts and arrangements
(1) Part 4 of this Act extends to construction work carried out before the commencement of section 37 as if the duty of care under that Part was owed by the person who carried out the construction work to the owner of the land and to subsequent owners when the construction work was carried out.
(2) Subclause (1) only applies to economic loss caused by a breach of the duty of care extended under that subclause if—
(a) the loss first became apparent within the 10 years immediately before the commencement of section 37, or
(b) the loss first becomes apparent on or after the commencement of that section.
(3) Part 4 of the Act as extended by subclause (1) applies regardless of whether an action for breach of a common law duty of care has commenced before the commencement of section 37 and may be taken into account in those proceedings unless the court considers that it would not be in the interests of justice to do so.
(4) Section 40 extends to a contract, agreement or stipulation relating to the construction work whenever made.
(5) For the purposes of this clause, a loss becomes apparent when an owner entitled to the benefit of the duty of care under Part 4 of this Act first becomes aware (or ought reasonably to have become aware) of the loss.
If you’re in a building, or managing a building, where this may be relied on, you’re strongly encouraged to obtain specific legal advice.
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