New South Wales Consolidated Acts

HOME BUILDING ACT 1989 - SECT 18F

18F Defences

(1) In proceedings for a breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arise from--

(a) instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done, or

(b) reasonable reliance by the defendant on instructions given by a person who is a relevant professional acting for the person for whom the work was contracted to be done and who is independent of the defendant, being instructions given in writing before the work was done or confirmed in writing after the work was done.

(2) A relevant professional is independent of the defendant if the relevant professional was not engaged by the defendant to provide any service or do any work for the defendant in connection with the residential building work concerned.

(3) A relevant professional is not independent of the defendant if it is established that the relevant professional--

(a) was engaged on the basis of a recommendation or referral of the defendant to act for the person for whom the work was contracted to be done, or

(b) is, or was within 3 years before the relevant instructions were given, a close associate of the defendant.

(4) In this section,
"relevant professional" means a person who--

(a) represents himself or herself to be an architect, registered design practitioner or registered principal design practitioner (within the meaning of the Design and Building Practitioners Act 2020 ), engineer or surveyor, or

(b) represents himself or herself to have expert or specialised qualifications or knowledge in respect of residential building work or any particular aspect of residential building work, or

(c) represents himself or herself to be engaged in a profession or to possess a qualification that is recognised by the regulations as qualifying a person as a relevant professional.