In Strata Plan 92183 v Samdora Pty Ltd [2026] NSWSC 406, Kunc J held that a director of the developer who was involved in repair work was not supervising, coordinating, project managing or otherwise having substantive control over the carrying out of building work and therefore did not owe a duty of care under s 37 of the DBPA. His Honour also dismissed various claims for breach of the HBA on the basis that they did not meet the criteria for a "major defect" and therefore were made out of time.
Case Background
Samdora was the builder of 9 town houses in Mangerton. Nassif was its director. 3173 Pty Ltd was the developer and owner of 4 lots in the property. Chahwan was its director. The SP commenced NCAT proceedings against Samdora and 3173 under the HBA. The proceedings were settled and SP withdrew the proceedings. Samdora was deregistered and the SP commenced Supreme Court proceedings against 3173, Chahwan and Nassif for defective building works under the DBPA and HBA.
Complete Defence
First, 3173 alleged that it had a complete defence because the NCAT settlement agreement included a release. To determine the content of the settlement agreement it was necessary to objectively consider the correspondence between the solicitors. Ultimately, his Honour found that the settlement agreement imposed no obligations on 3173 in relation to repair work which were to be carried out by Samdora, meaning that this claim against 3173 for Samdora's performance of the repair works under the settlement agreement failed.
No Duty of Care
Second, the SP's claim against Chahwan were based on an allegation that he carried out "construction work" and owed a duty of care under s 37 of the DBPA by "supervising, coordinating, project managing or otherwise having substantive control over the carrying out of" building work. However, after considering all of the evidence, his Honour found that the case against Chahwan was "circumstantial" and there was no evidence that he was appointed by anyone to supervise, coordinate, project manage, or otherwise have substantive control over the carrying out of the repair work. The limited instances or exchanges deposed by unit holders were insufficient to make a finding that he did this consistently over a period of time, despite him "undoubtedly" having an incidental involvement in the repair work. This was despite his Honour drawing a Jones v Dunkel inference because that does not permit facts to be found for which there is otherwise no evidence.
Major Defects
Third, his Honour considered each of the alleged defects forming the SP's claim against 3173 under the HBA. It was common ground that the defects had to be "major defects" and meet a two part test that it be a defect in a major element of a building and cause (or be likely to cause) the inability to inhabit or use the building (or part) for its intended purpose. On that basis his Honour dismissed many of categories of claims made against 3173.