Defective Premises — the Empire Strikes Back
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02070.x |
| Published date | 01 January 1996 |
| Author | Robyn Martin |
| Date | 01 January 1996 |
The Modern Law Review
[Vol.
59
Conclusion
Regalian
v
LDDC
demonstrates the kind of new and novel applications to which
the law of restitution is likely to
be
put as it takes its place
as
a legitimate branch of
the common law of obligations. It
also
demonstrates the practical importance of
continued conceptual clarification in the, law of restitution.
In the field of pre-contractual liability, the law of restitution will only
be
of
assistance to a plaintiff who has benefited the defendant, and who is able to point
to circumstances which render that benefit unjust. These limitations, it
is
submitted, properly balance what Farnsworth has called the common law's
commendably 'aleatory' view of pre-contractual
negotiation^,^^
with the need to
ensure that justice
is
done between the parties. Certainly, restitution
is
more likely
to yield consistent and just results than vague notions of good faith in pre-
contractual negotiations.
Defective Premises
-
the Empire Strikes Back
Robyn
Martin"
8
In
a
recent edition of the Review,' Laura Hoyano discussed the Supreme Court of
Canada's rejection of English law on defective premises in
Winnipeg
Condominium Corporation
No
36
v
Bird Construction
Co
Ltd.2
Since then the
High Court of Australia in
Bryan
v
Maloney3
has also declined to follow the House
of Lords in
D
&
F
Estate$
and
Murphy
v
BrentwoodS
and returned us to a
nostalgic era of pragmatic, policy based decision making.
The facts of
Bryan
v
Maloney,
unlike those in
Winnipeg Condominium,
are
simple. A small time builder built
a
house for his sister-in-law in
1979.
She sold it,
and that purchaser sold it on in
1986
to the plaintiff, Mrs Maloney. Six months
after taking possession of the house the plaintiff noticed cracks which were found
to
be
the result of inadequate foundations. By this time damage to the fabric of the
house was extensive.
The story is familiar and commonplace. The person in the street might well think
the solution simple. The negligent builder of the foundations should pay for the
damage to the house, in the same way that the negligent manufacturer of any other
good
is
required by law to compensate for damage caused. Yet the answer to the
question whether
a
negligent builder should be liable to
a
subsequent purchaser has
occupied the attention of the highest courts of Commonwealth jurisdictions,
,
32
Supra,
n
1
at 421.
*
University of Bristol
1
(1995)
58
MLR
887.,
2
3
[(1995)
121 DLR (4th) 193.
(1995)
1.28
ALR 163: Mason CJ, Deane
J,
Toohey
J
and Gaudron
J
agreed that a builder owed to
a
subsequent purchaser a duty of care, Brennan
J
dissenting. Toohey
J
delivered a separate judgment
departing from the majority on the dangeroudnon-dangerous defects distinction.
4
[1989]
AC
177.
5
[I9911
I
AC 398.
116
0
The
Modern
Law Review Limited
1996
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