The Owners – Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511

Andrew Hales  |  Anique Mawa  |  Conor Bates

Key takeouts

The Guide to the Building Code of Australia (BCA) provides relevant context to ascertain the proper construction of the BCA for assessing the effective height of a building for fire safety requirements.

Facts

The plaintiff was the Owners Corporation (owners) of a large residential apartment building in Strathfield, New South Wales. The defendants were members of a group of companies responsible for the development and construction of the building.

The first defendant, Omaya Holdings Pty Ltd (builder) and second defendant, Arinson Pty Ltd (developer) were parties to a building contract. The owners alleged the existence of an additional building contract between the developer and the third defendant, Omaya Investments Pty Ltd (Omaya Investments), for the design and construction of fire safety related works. Although no evidence of a written contract was found, the owners alleged Omaya Investments carried out ‘construction work’ for the purposes of the DBP Act.

The owners commenced proceedings in respect of general building and fire safety defects. The principal claims arose from the owners’ contention that the ‘effective height’ of the building for the purposes of the National Construction Code, the BCA, exceeded 25 metres (effective height claim). The BCA requires significantly more fire protection for buildings with effective heights exceeding 25 metres. It was common ground that if the effective height of the building exceeded 25 metres, the builder and developer would be liable for the cost of installing the additional fire safety equipment required by the BCA.

Among other things, the owners claimed damages from the builder, developer and Omaya Investments under the DBP Act. Specifically, the owners alleged that Omaya Investments had breached its statutory duty of care under section 37 of the DBP Act for failing to ensure that the building:

• had an effective height of 25 metres or less; or
• otherwise, had the requisite fire safety protection facilities for buildings exceeding 25 metres.

Omaya Investments disputed any liability to the owners arising from the effective height claim.

The developer and Omaya Investments brought cross claims against an architect and a certifier. Those cross claims were settled before the hearing.

Decision

The court dismissed the effective height claim on the basis that the ‘effective height’ of the building for the purposes of the BCA was exactly 25 metres. The height to the floor of the topmost storey was RL 40. The court held that the ‘floor of the lowest storey providing direct egress to a road or open space’ was the ground floor level of the building, which was at RL 15, not the garbage collection area (RL 14.45) or the car park entry area (RL 13.69).

In arriving at this decision Stevenson J had regard to the Guide to the Building Code of Australia (Guide) which, like the BCA itself, is published by the Australian Building Codes Board. His Honour observed that:

‘the Guide provides important context within which to understand the object of the provision of the Code for the Effective Height of the Building.‘

This is a departure from the view of Lindsay J in Owners Strata Plan 69312 v Rockdale City Council [2012] 91 LGERA 160; [2012] NSWSC 1244. In that case, his Honour held the Guide was not relevant to the proper construction of ‘effective height’ as referred to in the BCA and that the Guide added nothing material to the BCA.

DBP Act claim against Omaya Investments

Notwithstanding that the owners’ claim against Omaya Investments under the DBP Act failed as it was predicated on the effective height claim, the court elected to deal with some aspects of the claim. However, this case was decided a week before the decision of the High Court in Pafburn Pty Limited v The Owners – Strata Plan No 84674 [2024] HCA 49, which we reported here. Accordingly, Stevenson J’s findings on vicarious liability and the extent of the statutory duty of care must be read with Pafburn in mind and any inconsistent findings disregarded.