Building Contracts and the Law of Tort - Building Contract - page 460

responsibility and reliance by the subsequent purchaser. If that be a possible and indeed
respectable view, it cannot be said that the decision of the Court of Appeal in the present case,
based as it was on the same or very similar twin concepts, was reached by a process of faulty
reasoning, or that the decision was based on some misconception: see Australian Consolidated
Press Ltd v. Uren [1967] 3 All ER 523, [1969] 1 AC 590.
In truth, the explanation for divergent views in different common law jurisdictions (or
within different jurisdictions of the United States of America) is not far to seek. The decision
whether to hold a local authority liable for the negligence of a building inspector is bound to
be based at least in part on policy considerations. As Mason CJ said in Bryan v. Maloney (1995)
128 ALR 163 at 166:
Inevitably, the policy considerations which are legitimately taken into account in determin-
ing whether sufficient proximity exists in a novel category will be influenced by the court's
assessment of community standards and demands.
In a succession of cases in New Zealand over the last 20 years it has been decided that com-
munity standards and expectations demand the imposition of a duty of care on local authori-
ties and builders alike to ensure compliance with local byelaws. New Zealand judges are in a
much better position to decide on such matters than the Board. Whether circumstances are
in fact so very different in England and New Zealand may not matter greatly. What matters is
the perception. Both Richardson J and McKay J in their judgments in the court below stress
that to change New Zealand law so as to make it comply with Murphy 's case would have 'sig-
nificant community implications' and would require a 'major attitudinal shift'. It would be
rash for the Board to ignore those views . . .
Woolcock Street Investments Pty Ltd v. CDG Pty Ltd
HIGH COURT OF AUSTRALIA
(2004) 205 ALR 522
CDG designed the foundations of a warehouse and office complex for the then owner
of the premises. Woolcock subsequently bought the premises. It then became apparent
that the building was suffering substantial structural distress as a result of settlement
of the foundations.
Woolcock alleged that CDG owed it a duty of care and were in breach. A case was
stated for the Queensland Court of Appeal asking whether Woolcock's statement of
claim disclosed a cause of action in negligence.
The Queensland Court of Appeal said that it didn't and the High Court of Australia
(Kirby J dissenting) agreed.
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ:
Criticisms of Bryan v. Maloney
16. The decision in Bryan v. Maloney has not escaped criticism. Some of those criticisms found
reflection in the series of questions posed by Brooking JA in Zumpano v. Montagnese . It is not
necessary, in this case, to attempt to deal with all of those criticisms, or to attempt to answer
all of the questions posed in Zumpano . Rather, two points should be made.