Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2)

Boulus Constructions Pty Ltd brought an action against Warrumbungle Shire Council for breach of statutory duty under section 37 of the Design and Building Practitioners Act 2020 (NSW). The dispute arose due to the lack of valid development consent or construction certificate in relation to building works conducted by Boulus Constructions. The Supreme Court of New South Wales was tasked with determining the availability of the defence of illegality in this context and whether the managing director and project site supervisor of Boulus Constructions could be considered persons for the purposes of section 37 of the Act.

The legal issues included whether the defence of illegality was available to the Council in relation to the statutory duty claim, and whether the managing director and project site supervisor of Boulus Constructions could be considered persons under section 37 of the Act. The Court had to consider the implications of the illegal nature of the building works and how this affected the statutory duty owed by the Council. Additionally, the Court had to determine whether the proposed individual cross-defendants could be held liable under the Act.

The Court held that the defence of illegality was not available to the Council in this case, as the illegality was not related to the statutory duty claimed. Furthermore, the managing director and project site supervisor of Boulus Constructions were deemed capable of being persons for the purposes of section 37 of the Act. Consequently, the Court allowed the cross-claimant to amend the Cross-Claim List Statement to introduce the claim for breach of statutory duty. However, the amendment was disallowed against the proposed individual cross-defendants as they were not persons for the purposes of section 37 of the Act. The Court also disallowed the amendment on the basis of potential prejudice to the proposed cross-defendants.

The Court ordered that Boulus Constructions Pty Ltd could proceed with their claim against Warrumbungle Shire Council for breach of statutory duty. However, the claim was not to proceed against the managing director and project site supervisor of Boulus Constructions as they were not considered persons under section 37 of the Act. Additionally, the amendment to the Cross-Claim List Statement was disallowed against these individuals due to the potential prejudice it could cause.