Equitable High-Density Housing: Fiduciary Duties in Developer-Negotiated Body Corporate Contracts

Abstract

Strata title apartments constitute a significant and growing segment of the Australian housing market and have increasingly been the subject of consumer complaint. A particular source of concern are contracts between bodies corporate and service providers when housing developers have played a role in the contract’s negotiation and formation. By analogy with company promoters, case law has held that developers owe bodies corporate a fiduciary duty. This article explores the consequence of that fiduciary duty for contracts between a body corporate and third-party service providers when the developer assisted in the formation of that contract. It situates discussion in the context of New South Wales strata title legislation, and draws on current developer practices, such as the creation of embedded networks for energy and water in apartment buildings.