Court of Appeal

Tyrrell & Anor v McNab Constructions Pty Ltd & Ors [2014] QCA 052 (13/7675) Fraser and Gotterson JJA and Daubney J 21 March 2014

Full-text: QCA14-052.pdf


TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – RELATIONSHIP OF PROXIMITY – where the appellants were the subsequent purchasers of a house built by the first respondent and first purchased by the third respondent – where the appellants’ statement of claim alleged the house was negligently constructed and the appellants suffered loss as a result – where the statement of claim was struck out however the appellants were allowed to re-plead their case – whether at law a builder of a dwelling house owes a duty of care to subsequent purchasers – identification of the prerequisites for imposing on a builder of a defectively constructed building a duty of care to subsequent purchasers

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the appellants appealed the striking out of their statement of claim – whether the reasons given for the strike out were insufficient – whether the pleaded facts were incapable of giving rise to a duty of care and a cause of action – where the respondents cross-appealed the primary judge’s order to not strike out the action and allow the appellants to re-plead – whether there was a sufficient basis for the primary judge to conclude that the appellants would be able to re-plead sufficient facts to justify that they were owed a duty of care

Uniform Civil Procedure Rules considered

Rule 171(1)(a) - Striking out pleadings - discloses no reasonable cause of action or defenceRule 171(1)(b) - Striking out pleadings