Building Dispute Lawyers

Residential building work in NSW is primarily regulated under the Home Building Act 1989 NSW which is a consumer focused piece of legislation designed to protect homeowners. As a builder, you must be aware of your obligations.

Continue ReadingCall Us: 02 9119 2232

Building Dispute Lawyers

Residential building work in NSW is primarily regulated under the Home Building Act 1989 NSW which is a consumer focused piece of legislation designed to protect homeowners. As a builder, you must be aware of your obligations.

Continue ReadingCall Us: 02 9119 2232
————  01. OVERVIEW

We Can Help

Residential building projects, whether free standing homes, duplexes or multi-level high rises can be complex and result in disputes.

Whilst a lot of these disputes can be characterised as nothing more than disagreements between the builder and the homeowner which eventually work themselves out, others may require help from a specialist.

This is where our building dispute lawyers at One Law can assist by taking the time to understand the contractual relationship, the nature of the dispute and what live issues there are that need to be addressed. Disputes in building matters often involve incomplete or defective building work and can arise at any time during the project. However, they are more likely to arise after the works have reached a stage known as ‘practical completion’. Depending on the nature and value of the alleged defects, the process to resolve a dispute like this can take months to complete and cost you as the builder thousands of dollars.

If a claim has been made against you or your company and has progressed to the tribunal or a court our lawyers will help you negotiate the best possible resolution and if necessary defend the claim at a hearing. We fight to get you the best result as quickly as possible. Call us today to learn more.

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    At One Law, we can assist builders with the following types of disputes:

    • Building defect claims
    • Disputes about variations to the scope of work
    • Claims involving allegations of breach of the statutory warranties
    • Claims involving allegations of unlawful termination of a building contract
    • Breach of contractual terms of a building contract
    • Progress payment claims, regardless of whether the works have reached practical completion (commenced under the Security of Payment Law)
    • All Tribunal and Court work.
    ————  02. INFO

    Information for Builders

    Builders in NSW must be aware of their statutory obligations to homeowners under the Home Building Act before carrying out any residential building work. Breaching the provisions of the Act carries civil and, in some cases, criminal penalties including heavy fines and loss of your contractor license.

    In most cases, disputes under the Act involve allegations of defective or incomplete work. If this be the case, then the builder is alleged to have breached the statutory warranties under the Act.

    Statutory warranties are contractual promises that each builder or contractor carrying out residential building work must include in their contract. Even if these are not expressly referred to in the contract (which in itself is a breach), they are nevertheless included by law.

    These warranties essentially are:

    • Warranty that the work will be done with due care and skill
    • Warranty that materials supplied will be suitable and fit for purpose
    • Warranty that the work will be done with due diligence and within time under the contract

    Determining whether a breach of a statutory warranty has occurred is a question of law which a Court or Tribunal must arrive at after considering all the relevant circumstances including most importantly the written building contract.

    A party who alleges that building work is defective bears the onus of proving it. In most cases, that party will be required to commission an expert building report that can comment on the alleged defects and verify their existence.

    It is important to note that even if an expert has provided a report to say works carried out are defective, that may still not prove that there has been a breach of the statutory warranties as that is a question of law. Understanding these disputes requires lawyers to have a specialised knowledge of this area of law which is why we highly recommend that you speak to our building lawyers at One Law.

    The question of whether works carried out are in fact defective will require considering, amongst other things, the following matters:

    • The written building contract including the builder’s scope
    • Whether there have been any representations made by one party to another which can be considered a term of the contract
    • Any relevant manufacturer’s installation guides or codes
    • Any relevant Australian Standards

    Where a dispute of this nature cannot be resolved without further action, and depending on the value of the defects alleged, the matter will need to either go to the Tribunal or Court. If you find yourself in a dispute in excess of $10,000, you should consider seeking legal advice. If the amount in dispute is in excess of $100,000, we recommend that you immediately seek legal representation and do not attempt to run the matter on your own.

    The NSW Civil & Administrative Tribunal, sitting in its Consumer & Commercial Division, is the primary jurisdiction for deciding residential building disputes in NSW.

    Under the Home Building Act, the Tribunal has a monetary jurisdiction to hear matters up to $500,000. If a building dispute is in excess of this limit, it is transferred to the NSW Supreme Court.

    Legal representation is not an automatic right in the Tribunal and leave is required before a party to a home building dispute can have a lawyer represent them. However, procedural directions of the Tribunal provide that leave be granted to parties in a home building dispute if the amount in dispute is more than $30,000.

    Although Tribunal matters are conducted with less formality than traditional courts, they can still involve complex legal arguments and require strict compliance with timetable for service of evidence. In our experience, the Tribunal encourages parties to seek legal representation to assist with the efficient running of disputes and their timely disposal.

    The Tribunal has powers to make a range of orders when deciding a building dispute. The types of orders the Tribunal can make include ordering a party to pay a sum of money, to do work or a specified act or refrain from doing something.

    When deciding which orders to make in a building dispute, the Tribunal must have regard to the principle that ‘rectification is the preferred outcome’.

    This statutory presumption leads to a situation where, unless there are circumstances that warrant the making of another order, the Tribunal will order the builder or contractor to attend to the rectification of any defects that are found.

    The preferred outcome principle is important in two respects:

    • If affords an opportunity to the builder to fix their work;
    • It prevents an unjust enrichment by some homeowners who are seeking money from the builder without actually intending on fixing any defects

    Despite the preferred outcome principle, a party alleging defective building work may seek a money order from the Tribunal and argue that the statutory presumption should not apply. Whilst in some cases, there may be genuine reasons for this, in others it might just be a motivation to gain a quick cash grab.

    If you are involved in a case where the homeowner is seeking a money order, we can help you and advise you on the best way of defending it. The importance of resisting a money order is to avoid being liable to pay rectification costs which have often been determined by a third-party expert, commissioned by the homeowners. These costs can often be exorbitant and therefore it would be preferrable for you to get an opportunity to fix the defects instead, rather than paying the homeowner money.

    There are other cases where it would make sense for you to enter into a commercial settlement with the other party. We find that some builders have no desire to engage with the homeowners anymore and instead prefer to pay money. If the individual circumstances of your case require this consideration, we will discuss those options with you.

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      ————  03. HELP

      How We Can Help

      Often builders hesitate to contact lawyers until a dispute has escalated out of hand. This is usually when they have been served with a tribunal application or a statement of claim in court and claims made alleging thousands worth of loss. We always recommend trying to resolve the dispute before it gets to this stage.

      In order to successfully defend a claim, your lawyer needs to have a good understanding of:

      • The Home Building Act
      • The building contract and the general law of contract
      • What is considered a breach of the statutory warranties. Note that somethings can be considered defective, but not necessarily a breach of the statutory warranties. There is a difference!
      • How the Tribunal views defects in view of the building contract and the Act
      • What tests apply in measuring what a homeowner’s loss is. Note that just because it may cost for example $50,000 to fix the floating flooring of an apartment, does not mean that you should be liable to pay that.

      If you are struggling to resolve a dispute let us help you. Our lawyers will provide easy to understand advice and recommendations and will take all steps necessary to try negotiate a fast and effective resolution and if required will fight to defend your claim in court. We offer competitive and flexible pricing and we’re transparent about our fees so you’re fully informed of your costs upfront.

      If you’d like to get in touch with one of our building dispute lawyers, call us today or complete our contact form and we’ll call you.

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        ————  04. SUCCESS STORIES

        RECENT CASES

        $2.2m

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        $900k

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        See All Results

        Subcontractor ordered to pay liquidated damages to head builder due to delay in completing works

        Growthbuilt is a building company who had entered into 4 contracts with various developers for…

        Builder awarded damages against homeowner after homeowner directed the builder to stop works

        A builder entered into a standard form contract with a homeowner to build a granny…

        Contractor wins restitution order against family members for extensive renovation work without written contract

        A contractor, who was the former brother-in-law of the Defendant, carried out major renovations on…

        ———— 05. FAQ

        Frequently Asked Questions

        What’s the difference between a major and minor defect?

        A major defect is a building defect to a major element that causes (or is likely to cause) either:

        (d) The inability to occupy or use the building (or part of it) for its intended purpose

        (e) The destruction of the building, or part of it, or

        (f) A threat of collapse of the building, or part of it

        A minor defect are smaller defects that can affect how a building looks or functions. But minor defects don’t compromise the integrity of the building structure.

        How long after practical completion can a homeowner make a defect claim?

        Under the Home Building Act 1989 (NSW), owners have:

        • Two years to make a claim for compensation against a builder for minor defects
        • Six years to make a claim against a builder for major defects

        What is Practical Completion?

        Practical Completion is when the builder completes the work outlined in the contract. This is except for any omissions or defects that don’t prevent a homeowner from using the home or renovations.

        I’m a builder and a homeowner has made a claim against me. Can I defend it?

        This is where one of our building and construction lawyers comes in to help builders.

        We’ve found that there are many occasions where builders can defend defect claims. The defence tends to fall under one of the following categories:

        4. The builder is not responsible for the defect as it wasn’t part of the Scope of Work

        5. The builder doesn’t believe the work is defective, or

        6. The homer brought the claim out of time.

        If you’re a builder who needs help defending a claim by a homeowner, contact us for an obligation-free chat.

        Do we need to go to Court?

        Not at all. In fact, we work hard to get you an early settlement so that Court proceedings aren’t necessary. This means less stress for you. And it keeps your legal costs and the impact on your profitability to a minimum.

        ————  06. WHAT OUR CLIENTS SAY

        Our reputation for support, and our dedication to your success is the reason we continue to grow

        I would like to thank the team at One Law for all their help and support. It is very much appreciated. You have been fantastic to deal with from the beginning and have worked hard to help us get a great result. We would highly recommend you to others...

        Michael S.

        Marina Azer, was my lawyer at One Law. She was very efficient, professional, swift, and honest. She won my case and I was very happy with the outcome.

        I would highly recommend her.

        Danny Corleon

        I was very impressed with their commitment and desire to provide me with the best outcome at court. Their experience and knowledge was reflected in my overall outcome and I will always be grateful for their hard work. A very big thank you to James, Janine and the team.

        Katie Kramer
        ————  07. OUR TEAM

        Your Business & Commercial Law Specialists

        At One Law, we understand that every case is different, and we take the time to get to know your situation. We are your local lawyers with access to resources in all states, so you know your case is in good hands no matter where you are in Australia. Meet our Business and Commercial Law Specialists

        James Saba

        Director

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        Angelo Margiotta

        Lawyer

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        Sina Shokouhi

        Lawyer

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        Geetha Sanderan

        Managing Associate

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        Cynthia El Mokdsi

        Lawyer

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        Mariah Jammal

        Paralegal

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        Violet Saba

        Paralegal

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        Christiana Alavanos

        Legal Assistant

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        ————  08. WHAT ELSE WE DO

        Building and Construction Law Services

        Building Contract Disputes

        Advice, negotiation and resolution of building
        contract disputes

        Read More

        Strata Disputes

        Advice, negotiation and resolution of strata disputes in both residential and commercial
        strata schemes

        Read More

        Do you need a Business or Commercial Lawyer?

        Call us on our free advice line or leave your details and we’ll call you.

        Contact UsCall Us: 02 9119 2232