Building law, duty of care and a tale of two cities comparing Melbourne and Sydney

This morning in Melbourne I had been dealing with a building issue and considering the liability of a building professional. I was considering whether a duty of care arises from a professional that undertook work relevant to a home dwelling but didn’t contract with the homeowner. A situation called a subsequent owner.

In considering:

• Building law which applies here and is governed by the Building Act 1993 (Vic) and Domestic Building Contracts Act 1995 (Vic);
• Insurance law which is governed by the Insurance Contracts Act 1984 (Cth) and which applies across Australia;

And I was then speaking to a colleague in Sydney who reminded me:

• if I were in Sydney how different it may be (at least on the building law not the insurance):
• a duty of care may be owed by the professional to the subsequent owner given section 37 of the Design and Building Practitioners Act 2020. AND irrespective of a contractual relationship…it says this in the provision!.

The Melbourne vs Sydney divide

This got me thinking about the craziness of this one distinction between: Melbourne where I sat at my desk and Sydney where he sat his desk.

That one distinction is not minor…not for example just the absence of an Opera House here in Melbourne… but A duty of care, the very thing that gives you a right to claim for loss. For your home, Your castle! and of course from the city where that famous movie was made.

But here in Melbourne it is not clear that a duty of care is owed but in Sydney it is.

The Melbourne challenge

Anyway back to the story… In Melbourne we need to deal with High Court authority since Bryan v Maloney because we don’t have a statutory duty of care in our building law and that authority for the most part makes it difficult to sue for a duty of care without a contractual relationship.

So, in one area of law:

• building: it is opposite
• insurance: it is the same

and the location of the city defines your right to sue and recover…or not as the case may be here in Melbourne.

Why wasn’t this fixed?

Okay. Yes I am realist, a mere solicitor who must deal with the realities of life and law, but occasionally I think, why, oh WHY legislature why didn’t you just amend our legislation in building law in this state and include these four subs…

After all, the legislation creating recent amendments was called the Building Legislation Amendment (Buyer Protection) Bill 2025

And this one little thing…is missing A duty of care… Duty of care! A DUTY OF CARE….

Okay, I have calmed down now.

The bottom line

FYI the tale goes like this: If you are a homeowner and buy a house in Victoria and you want to make a claim directly against a professional who you didn’t contract with and was relevant to the build (excluding say a certifier - that can be different) you have got some challenges.

Make sense?

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building law
• property disputes