Builders’ duty of care revisited

The Court of Appeal has just revisited the scope of a builder’s personal duty of care.

In 2023 I wrote about Palmer v Hewitt Building Ltd [2021] NZHC 1460. In that case Cooke J held that “compliance with the Building Code” is only a shorthand for the builder’s duty, and that the true obligation is to meet the standards of a reasonable builder.

In a decision delivered on 9 October 2026, DTB Construction Ltd v Dobbe [2026] NZCA 492, the Court of Appeal has taken a different view. Consistent with its recent decision in Body Corporate 406198 v Argon Construction Ltd [2025] NZCA 684, the Court prefers the view that the tortious duty is merely to take care to achieve compliance with the Building Code. It said the authorities do not support Cooke J’s broader formulation (at [130]), although it did not need to finally resolve the point (at [131]).

At the same time, the Court strongly endorsed Palmer on a second point. There is no duty in tort to take care to build to a contract standard. A director who manages a design and build project does not personally guarantee the company’s contractual promises, including a promise that the works will be fit for purpose. The Court quoted Cooke J’s “gold taps” example with approval (at [134]).

In DTB, a director of the building company had been held personally liable for a commercial yard that was found not to be fit for a 12.5-tonne fork hoist. The Court of Appeal overturned that finding. The 12.5-tonne requirement was a contract standard, not a Code standard. And because the yard was not a building, the Code did not apply at all.

Three questions now look open.

1. What duty, if any, does a builder of works outside the Code owe in tort? The Court left open the possibility of a duty to meet “reasonable building standards”.

2. Does the duty still extend to doing building work so that it can be approved by the consenting authority, as Cooke J held in Palmer?

3. When does a director who supervises the work, as opposed to the person who does it, owe a personal duty?

The practical lesson for claimants is to identify the Code standard first, and to make sure the expert evidence addresses it.