Bigridge Pty Ltd v Moore & Ors; Neil Evans & Noel McKernan Pty Ltd v Moore & Ors; Smith v Moore & Ors

These three appeals concerned the interpretation and application of the *Builders' Registration Act 1989* (WA) (the Act) and the *Builders' Registration Act 1989* (WA) (the Act). The appellants, Bigridge Pty Ltd, Neil Evans & Noel McKernan Pty Ltd, and Smith, were all builders who had been registered under the Act. The respondent, Moore, was a building owner who had engaged the appellants to carry out building work. The dispute arose when Moore alleged that the work carried out by the appellants was defective and sought to recover damages. The appeals were heard together by the High Court of Australia.

The central legal issue before the High Court was whether the appellants, as registered builders, were entitled to rely on the limitation of liability provisions contained within the Act, specifically section 38(1), which purported to exclude or limit the liability of registered builders for defective work. The court was required to determine the scope and effect of this provision, particularly in light of the common law principles of contractual liability and the potential for statutory provisions to override such claims.

The High Court, in a joint judgment delivered by McHugh and Kirby JJ, held that section 38(1) of the Act did not operate to exclude or limit the liability of registered builders for defective work in the circumstances of these appeals. Their Honours reasoned that the provision was intended to protect builders from claims arising from minor defects or deviations from plans that did not amount to a substantial failure to comply with the contract or the building code. They found that the defects complained of by Moore were substantial and constituted a breach of the building contracts, and therefore the appellants could not rely on the statutory limitation. The court affirmed the principle that statutory provisions purporting to limit liability must be construed strictly and will not be applied to defeat claims for significant breaches of contract or statutory obligations.

Consequently, the appeals were dismissed, and the appellants were found liable to compensate Moore for the cost of rectifying the defective building work.