Bryan v Maloney

The applicant, Mr Bryan, sought special leave to appeal to the High Court of Australia against a decision concerning the liability of a builder. The dispute involved a house constructed with defective footings. The applicant, a subsequent purchaser of the house, sought to recover the cost of repairs from the original builder, despite having no direct contractual relationship with the builder and having purchased the property without specific knowledge of the builder or the defects.

The central legal issue before the High Court was whether the original builder of a house owed a duty of care in tort to a subsequent purchaser to avoid economic loss arising from defects in the construction of the house, where the only damage was the cost of repairing the defect itself. This question required the Court to consider the extent to which a builder's liability could extend beyond the original owner to remote purchasers, and whether such liability could encompass pure economic loss.

The applicant's argument, as presented, referred to the House of Lords decision in *Murphy v Brentwood*, which had departed from the earlier decision in *Anns v Merton*. In *Murphy v Brentwood*, the House of Lords concluded that a manufacturer of a chattel is not liable to a subsequent purchaser for defects in the chattel itself that merely diminish its value, in the absence of a special relationship of proximity. The applicant's counsel sought to apply this reasoning to builders and buildings, arguing that the mere fact that a builder contemplates that a building may be sold to subsequent purchasers does not establish the necessary special relationship for recovery of pure economic loss. The Court was thus asked to determine whether Australian law should follow this approach, particularly in light of previous High Court pronouncements.