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

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Details
Case
[2025] NSWSC 1306
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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