The panel discussion took the form of a Q&A exploring the wider implications of the Pafburn decision for the construction industry. It considered how the decision may influence project delivery, professional accountability, and approaches to risk and compliance. Panellists offered reflections on emerging expectations across the sector and discussed how the decision could shape future industry practices, operational models, and sustainable compliance frameworks.
Pafburn and the Future of Construction Law in NSW
Essential Resources for Developers, Builders, Strata Managers and Professionals
In Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49, the High Court held that developers and head contractors owe a broad, non-delegable duty to take reasonable care under the Design and Building Practitioners Act 2020 (NSW), making them fully liable for defects caused by breach of that duty of care, even if caused by persons to whom they have delegated or entrusted work or a task, such as subcontractors. This eliminates the defence of proportionate liability being used by developers and head contractors and treats their liability as if it were vicarious liability for the acts of negligence of persons to whom they have delegated or entrusted work or a task.
The duty applies to both residential and commercial buildings, significantly increasing risk exposure for developers and head contractors across the industry. Developers are now prime litigation targets. Individual directors could also face personal liability. The decision complicates litigation by requiring more cross-claims and creating uncertainty around contribution rights and apportionment under the Civil Liability Act.
Commercially the decision is expected to raise construction costs, insurance premiums and financing risks. It also encourages a shift toward stricter supervision, better quality control and comprehensive risk management. While intended to improve consumer protections and industry standards, the decision, on view, adds to legal complexity and commercial pressure which will require stakeholders to adopt new benchmarks for legal and financial responsibility.
This page brings together Kreisson’s leading commentary and resources on the consequences of Pafburn.
Access detailed papers, articles, and podcasts explaining what the decision means for your projects, contracts, and risk management strategies.
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Pafburn & the Afterburn
On 1 May 2025, Pafburn & the Afterburn, hosted by Kreisson, brought together legal counsel involved in the Pafburn decision and senior industry figures for a candid, practical discussion on what the High Court’s decision means for professionals across all levels of the construction chain.
The purpose of the event was to encourage a rethinking of business strategies and risk mitigation approaches in response to evolving standards in the construction industry balanced with the needs for commercial sustainability.
The session explored:
- The impact of the Pafburn decision on the construction industry.
- The need for businesses to meet new expectations and standards in compliance, governance and best practice.
- The influence that Pafburn will have on the whole-of-life and end-to-end approach to projects from material import or pre-fabrication, design, managing risks, ensuring compliance and mitigation of liability through from delivery of the building to 10 years post-completion, ensuring defect rectification and reducing long term legal exposure.
Speaker Segments:
Speaker 1: David Weinberger
Speaker 2: Tony Di Francesco
Speaker 3: George Zakos
Speaker 4: David Chandler, OAM
Panel Discussion:
The Pafburn decision marks a critical shift. Businesses that proactively increase risk awareness, refine risk mitigation strategies, enhance outcomes while reducing risk, strengthen protections against financial and legal exposures, and improve governance for long-term compliance and sustainability will be best positioned to navigate the evolving construction landscape.
Understand the risk. Implement the solution.
The Pafburn & the Afterburn seminar clarified the risks. Our service offering shows how to mitigate them.
See how we’re helping clients embed legal resilience through contract compliance, administrative rigour, and dispute-readiness.
eBooks:
Delve deeper into the post-Pafburn landscape.
Our expertly curated eBooks unpack the High Court's decision, explain the new Building Bill reforms, and outline their impact across strata, construction, and development sectors. Whether you're a developer, builder, consultant, or strata manager, these resources provide the strategic insights you need to stay compliant and protected in a rapidly shifting legal environment.
A practical guide to understanding how Pafburn is reshaping liability in construction law across NSW.
Designed for strata managers, developers, and owners, this guide provides a clear roadmap for navigating NSW’s evolving legal landscape in 2025, outlining how new regulatory requirements impact accountability, compliance, and consumer protections.
This comprehensive eBook provides critical insights into the proposed building law reforms in NSW, offering valuable information for builders, developers, design practitioners, and related professionals.
Discussion Paper:
Unpacking the deep impacts of Pafburn.
In this long-form paper, Special Counsel Richard Kouchoo and Senior Associate Estelle Nam delve beyond the headlines to explore the far-reaching and at times unexpected implications of the High Court’s ruling in Pafburn. This commentary examines the decision through the lens of real-world litigation risk, cross-claim strategy, and the potential exposure of natural persons, financiers, and developers alike. It’s a must-read for professionals grappling with the legal uncertainty that now permeates construction, certification, and procurement practices in the wake of this landmark case.
Enter your details to receive a copy:
Podcasts:
Tune in for practical breakdowns that matter.
In this podcast series, Special Counsel Richard Kouchoo cuts through the complexity of the Building Bill reforms and the implications of Pafburn. In under 20 minutes per episode, get a sharp, actionable understanding of what’s changed, why it matters, and how to adapt — whether you're on-site, in the office, or on the move.
Articles:
Follow the legal journey of Pafburn as it unfolded.
From the Supreme Court to the High Court, our articles track the progression of the Pafburn litigation and its major turning points. Read practical commentary on how each judgment has reshaped the interpretation of statutory duty of care, developer liability, and the evolving expectations for industry professionals under the DBP Act.
The Supreme Court Decision:
Potential Liability of Developers under the DBPA
The Owners Of Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659
Appeal to the High Court:
Update on the Pafburn Saga - from the High Court
Pafburn & Madarina v The Owners SP 84674 [2023] NSWCA 301
By Gretel Wathen
Legal clarity begins with structured delivery.
If you're assessing your risk exposure after Pafburn, start by reviewing how we help clients manage liability through
properly drafted contracts, compliant administration, and end-to-end legal oversight.
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