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Kapila v Monument Building Group Pty Ltd

Kapila v Monument Building Group Pty Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: Kapila v Monument Building Group Pty Ltd [2025] NSWSC 1306
Hearing dates: 11–15, 20 November 2024
Last submissions 7 February 2025
Date of orders: 5 November 2025
Decision date: 05 November 2025
Jurisdiction: Equity
Before: Richmond J
Decision:
(1) Direct the parties to bring in short minutes of order to give effect to these reasons within 14 days;
(2) Liberty to apply.

Catchwords:
BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties under s 18B of Home Building Act 1989 (NSW) — Whether building work complied with Building Code of Australia (BCA) — Where under BCA different standards relating to waterproofing exists depending on correct classification of given room as ‘habitable’ or ‘non-habitable’ — Meaning of ‘habitable’ under the BCA
NEGLIGENCE — Duty of care — Non-delegable duty — Whether claim for breach of statutory duty under s 37 of Design and Building Practitioners Act 2020 (NSW) (DBPA) is apportionable under Part 4 of Civil Liability Act 2002 (NSW) where there has been no delegation of works to third parties — Consideration of Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 and The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301
NEGLIGENCE — Defences — Contributory negligence — Whether defence of contributory negligence applicable to breach of statutory duty under s 37 DPBA — Whether defence made out on the facts

Legislation Cited:
Civil Liability Act 2002 (NSW)
Design and Building Practitioners Act 2020 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW)
Home Building Act 1989 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

Cases Cited:
About Life v Maddocks Lawyers [2021] NSWSC 1370
Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Astley v Austrust (1999) 197 CLR 1
Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd (No 2) [2013] NSWSC 1943
Bellgrove v Eldridge (1954) 90 CLR 613
Boateng v Dharamdas [2016] NSWCA 183; (2016) 77 MVR 151
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Crouch v Hooper (1852) 16 Beav 182; 51 ER 747
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Hatch v Northern Beaches Council [2019] NSWLEC 1422
Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200
Jones v Dunkel (1959) 101 CLR 298
Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group [2024] NSWCA 143
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
Leichhardt Municipal Council v Montgomery

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1306
Decision Date: 05 November 2025

CaseChat Overview and Summary

The matter of Kapila v Monument Building Group Pty Ltd involved a dispute between the plaintiff, Kapila, and the defendant, Monument Building Group Pty Ltd, regarding the quality of building work carried out on Kapila’s property. The plaintiff claimed that the defendant had failed to comply with statutory warranties under section 18B of the Home Building Act 1989 (NSW) and had breached a statutory duty of care under section 37 of the Design and Building Practitioners Act 2020 (NSW). The case also examined the applicability of contributory negligence as a defence to a claim for breach of statutory duty.

The primary legal issues the court had to address were whether the building work complied with the Building Code of Australia (BCA), specifically in relation to the classification of a room as either 'habitable' or 'non-habitable', and the impact of this classification on the applicable waterproofing standards. Additionally, the court considered whether the statutory duty of care under section 37 of the DBPA could be apportioned under Part 4 of the Civil Liability Act 2002 (NSW) and whether contributory negligence could be a defence in such a claim.

The court found that the room in question should be classified as 'habitable' under the BCA, which resulted in the application of stricter waterproofing standards. The defendant's failure to meet these standards led to a finding of non-compliance with the statutory warranties. Regarding the statutory duty of care, the court concluded that the duty was non-delegable and could not be apportioned under the Civil Liability Act, drawing on the recent High Court decision in Pafburn Pty Ltd v Owners – Strata Plan No 84674. The court also held that the defence of contributory negligence was not applicable to the statutory duty claim, as the statutory duty imposed an absolute obligation on the defendant.

The court ordered the defendant to remedy the deficiencies in the building work and compensate the plaintiff for the costs incurred. The defendant was also liable for the plaintiff’s legal costs.

Orders