The Owners Strata Plan No 84674 v Pafburn Pty Ltd

The Owners Strata Plan No 84674 (the appellant) appealed to the Court of Appeal of New South Wales against an interlocutory order of the Equity Division that refused to strike out a defence. The dispute concerned a claim by the owners corporation for defective building works, and the core of the appeal revolved around whether the appellant's claim was apportionable under Part 4 of the *Civil Liability Act 2002* (NSW).

The primary legal issue before the Court of Appeal was whether the appellant's claim, which alleged a breach of a statutory duty for construction work and sought to extend that duty to subsequent owners, constituted a "tort" for the purposes of the *Civil Liability Act 2002* (NSW). This determination was crucial to whether the respondent's defence, which sought to apportion liability, could stand. The court also considered the nature of the duty owed by builders and whether it was non-delegable.

The Court of Appeal reasoned that the claim, as pleaded, was not one that could be characterised as a "tort" in the traditional sense for the purposes of apportionment under the *Civil Liability Act 2002* (NSW). The court found that the claim was primarily based on a breach of statutory duty, and the principles of apportionment under that Act were not applicable to such claims. The court emphasised that the duty owed by a builder in this context was non-delegable, meaning the builder remained responsible for the work regardless of who performed it.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the Equity Division. The court ordered that the relevant paragraphs of the respondent's defence be struck out and that the respondent pay the appellant's costs of the motion and the appeal.