Chan v Acres [2015] NSWSC 1885

Supreme Court New South Wales

Medium Neutral Citation: Chan v Acres [2015] NSWSC 1885 Hearing dates: 29/9/2015, 30/09/2015, 01/09/2015, 02/10/2015, 06/10/2015, 07/10/2015, 08/10/2015, 12/10/2015, 13/10/2015, 14/10/2015 and 15/10/2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Equity Before: McDougall J Decision: Parties to bring in draft orders to give effect to reasons. Catchwords: NEGLIGENCE – building and construction – where plaintiffs purchased a house that had been defectively renovated by the vendor, the first defendant – second defendant no longer a party to proceedings – where vendor had engaged an engineer, the third defendant, to carry out inspections at particular times – where vendor had also engaged the local council, the fourth defendant, to act as Principal Certifying Authority

STATUTE – case against vendor – statutory warranties set out in the Home Building Act 1989 (NSW) – warranties breached

NEGLIGENCE – case against engineer – whether the engineer owed a duty of care at common law to use reasonable care to avert the risk that subsequent purchasers might suffer pure economic loss – relevant authorities – requirement that purchasers must have been vulnerable – analysis of vulnerability to proceed by reference to the salient features of the relationship – assumption of responsibility and known reliance as important factors – inability to protect one's self from harm as another important factor – where no evidence of assumption of responsibility on the part of the engineer or known reliance on the part of the purchasers – where purchasers were, to some extent, able to protect themselves – no duty of care – further finding that had a duty been owed, breach would be made out, but not causation