Aug 30, 2024 | Building and Construction Law
Construction projects can become overwhelming when the people you have contracted are failing to meet the required standard. To avoid complications with your residential building work, it is important to know how to resolve construction disputes with architects, builders, subcontractors and swimming pool builders.
Licenses
You should always make sure that your builder or tradesperson is properly licensed.
For builders, subcontractors and swimming pool builders you can check via Service NSW if that service provider is licensed.
For architects you can check via NSW Architects Registration Board if the architect is registered.
If your dispute is with someone unlicensed, the remedies provided by resolution bodies are limited.
Negotiation
Prior to lodging a formal complaint, you should meet with your architect, builder or subcontractor to negotiate the issue.
A written record of your meeting should be kept as evidence of your efforts in resolving the issue.
If an agreement is reached, it should be placed in writing, dated and signed by both parties to become legally binding. This agreement should be attached to any existing residential construction contract.
Disputes with Architects
If your negotiations with your architect are unsuccessful, you can submit a complaint to the NSW Architects Registration Board (‘NSW ARB’).
The submission must include your complaint(s), the clause(s) of the NSW Architects Code of Professional Conduct 2017 or Architects Act 2003 (NSW) that may have been breached, and evidence on which the allegation is based. Evidence may include the agreement from your architect, correspondence or plans.
Once the complaint has been received, NSW ARB will notify your architect of the complaint. The architect with then be given 28 days to provide a written response to the complaint(s). The NSW ARB may request meetings or further submissions of evidence to aid any professional misconduct investigation.
Professional misconduct involves a failure to comply with relevant legislation or the inability to demonstrate reasonable competenece and diligence. If the NSW ARB determine that your architect is guilty of professional misconduct, they may impose a variety of sanctions including:
- Ordering the architect to refund part or all of the payment for the architectural services in question;
- Ordering the architect to report on their architectural practice at specified times; or
- Ordering the architect to pay a fine.
The NSW ARB may also apply to the NSW Civil and Administrative Tribunal (NCAT) for a disciplinary finding against your architect.
To learn more about disputes with architects, please refer to the NSW ARB website.
Disputes with Builders
If you have failed to reach an agreement with your builder through negotiation, you can apply for third party dispute resolution. NSW Fair Trading can assist with building disputes related to:
- incomplete or defective home building work;
- damage caused to other structures (including neighbouring properties) by home building work; or
- specialist work, including electrical wiring, plumbing, gas fitting and air conditioning/refrigeration.
It is important to note that both parties must consent to conducting third party dispute resolution.
As a client to a contractor, builder or tradesperson you are automatically granted warranties under law. These statutory warranties protect you from negligent or defective services within certain time periods after work has been completed. The statutory warranty for major defects is 6 years whilst the warranty period for minor defects is 2 years.
Disputes with Swimming Pool Builders
In addition to NSW Fair Trading, the Swimming Pool and Spa Association (SPASA) offers a complaint and dispute resolution service for its members. To check if your swimming pool builder is a member, visit the SPASA website.
Disputes with Subcontractors
When initiating a dispute with a subcontractor involving incomplete or defective works, you should ensure that you:
- Notify the subcontractor in writing and provide a time frame for the works to be rectified; and
- Obtain evidence on how the works are defective or incomplete. Evidence may include original plans and photographs.
The person who subcontracted the incomplete or defective works must raise the dispute, not the home owner.
It is important to note that dispute resolution between builders and subcontractors is not provided by NSW Fair Trading. These matters are handled by NCAT.
Applying for Orders from NCAT
NCAT is a conciliatory body that provides final and legally binding decisions in home building disputes.
Orders made by NCAT are legally enforceable and can include; payment or non-payment of services, building rectification work or the prevention of further building work.
To apply for orders with NCAT, you must prove that you have attempted to resolve the dispute with NSW Fair Trading. Unless your dispute is exempt from NSW Fair Trading investigation, your application must attach a letter from NSW Fair Trading.
To learn more about applying for home building orders, please visit the NCAT website or download the NCAT home building application form.
Contact Us
If you have concerns with someone you have contracted for construction work, we recommend seeking professional advice. To discuss your situation with a lawyer experienced in building and construction dispute matters, please contact Etheringtons Solicitors on 9963 9800 or via our online contact form.
Jul 13, 2022 | Building and Construction Law, General Advice
If you’re the owner of a property that has a swimming pool, you need to be aware of your obligations in relation to your pool. Personal swimming pools must be compliant with NSW regulations. These regulations and who they apply to are discussed below.
Who must be compliant with these regulations?
The regulations apply to all swimming pools and spa pools that are capable of being filled with water to a depth greater than 30cm and are used for swimming, wading, paddling or any kind of human aquatic activity.
Every pool owner must register their pool with the New South Wales Government Swimming Pool Register and also must have a compliance certificate from either their local council or a private swimming pool certifier. This is particularly important if a swimming pool owner plans to sell their property, as a certificate of compliance (or non- compliance) must be attached to the contract for sale. A failure to do so can result in a purchaser being able to rescind the contract.
Certificate of Compliance
A certificate of compliance can be issued by either the local council or a private certifier. In granting the certificate, the certifier will consider a number of safety items, such as the fence and enclosure surrounding the swimming pool and the closure on the gate. The objective is to ensure that children do not inadvertently get into the pool area without the intervention of an adult.
Once either the council or the certifier have assessed the swimming pool they will provide you with a certificate of compliance. The certificate of compliance can be attached to a contract for sale and it will remain valid for three years from the date of issue.
Certificate of Non-Compliance
If the local council or a certifier inspects your swimming pool or spa and they determine it is not compliant, they may issue you with a non-compliance certificate. This certificate lists the reasons that the pool does not comply with the regulations and the items that need to be corrected before a certificate of compliance can be issued.
If the pool is deemed a risk to public safety, the swimming pool owner must rectify the non-compliant issues within a certain amount of time.
If the pool is not deemed to be a risk to public safety, the owner must still attend to the issues of non-compliance within a reasonable time period. However, if the pool owner is selling the property and they have not yet rectified the issues of non-compliance, they must attach this certificate of non-compliance to the contract for sale.
The effect of this is that it passes on the obligation to rectify the issues of non-compliance to the purchaser. The purchaser will have ninety days from the date of completion in which to correct the issues raised in the certificate of non-compliance and to receive a certificate of compliance.
If you would like any further information about swimming pool compliance, please contact our friendly solicitors on 9963 9800.
Jul 8, 2022 | Building and Construction Law
Mr David Chandler OAM began his position as the NSW Building Commissioner on 14 August 2019. The former Premier of NSW, Gladys Berejiklian, stated that the appointment of a Building Commissioner is a critical part of the NSW Government’s plan to completely reform the building regulations and conduct in NSW.
What is the Role of the Building Commissioner?
The Building Commissioner will administer a variety of different functions regulating the building industry, namely, driving legislative reforms, investigating misconduct and initiating disciplinary action where necessary.
Legislative Reforms:
This will include a number of different regulations, such as:
- Requiring building practitioners to be registered as practitioners in NSW
- Introducing a new duty of care to make it easier for home owners to seek compensation against building practitioners who have acted negligently
- Ensuring all buildings that are constructed adhere to plans that comply with the Building Code of Australia.
Investigative and Disciplinary Role:
The Commissioner will also be responsible for the investigation into and discipline of misconduct in the building industry. This may include investigating the regulation of building standards, quality and disputes.
What Does This Mean For Apartment Owners?
Apartment owners and purchasers will hopefully be better protected following the appointment of the NSW Building Commissioner. As this multifaceted role was developed with the security of home owners in mind, policies that aim to ensure high standards of building and construction, such as the new duty of care, make seeking compensation for construction misconduct easier and more accessible.
Further Information
It is important that home owners and building developers are made aware of their possible obligations and rights. We can provide additional information and advice to you regarding your building or property situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or via our contact form.
Jul 6, 2022 | Building and Construction Law, Strata Law
The Independent Construction Industry Rating Tool (iCIRT) was launched by the NSW Government in late 2020 to tighten building regulations and inspections. This strategy aims to rebuild public confidence in building professionals following numerous construction failures such as with Sydney’s Opal Tower and Mascot Towers. In this article, we explore how the iCIRT is used to rebuild trust in construction projects and improve the credibility of building practitioners.
What is iCIRT?
iCIRT uses a five-star rating system to offer transparency on the track record of builders, developers, sub-contractors, certifiers and consultants. Building professionals are awarded star ratings based on their ‘capability and willingness to deliver reliable and trustworthy built assets’. To be considered trustworthy, construction experts are assessed on the following key areas:
- Character – trustworthiness determined by proof of credentials or adverse media checks
- Capability – trading history as well as current licences and insurances
- Conduct – track record of any current or past litigation, penalties or debts
- Capacity – ability to achieve project targets whilst maintaining stable cash flow
- Capital – sufficient capital to sustain operations, funding, debts and borrowing capacity
- Counterparties – related party transactions to support sustainable sourcing of materials and market exposure.
The data that is gathered for this assessment is procured either directly from the practitioner (with their consent) or is accessed through insurers, financiers, large suppliers or the government. An iCIRT star-rating is compiled by Equifax Australasia Credit Ratings Pty Ltd (Equifax), a credit rating agency.
How can iCIRT re-build public confidence in construction?
Consumers can search on the iCIRT portal for proven track records of construction industry professionals. You may search by property location, business entity or individual. Not only does the portal provide access to industry-based comparisons and ratings, it also provides detailed reports which may indicate certain risk areas that need further consideration. It should be noted that there is a fixed-fee framework for reports. The pricing is based on the type of report chosen and the amount of detail included in the assessment.
When using iCIRT, consumers can access reputable information about construction professionals, giving them the confidence to make informed decisions when pursuing a construction project.
How can iCIRT be used to improve the credibility of building practitioners?
iCIRT is currently available to developers, builders and certifiers of Class 2 buildings. A Class 2 building is typically an apartment building which contains two or more sole-occupancy units. In line with the Class 2 industry reforms under the Design and Building Practitioners Act 2020, iCIRT aims to provide a database for reputable building professionals to ensure that residential constructions are safe and secure. In due course, the register will expand to include designers, manufacturers and suppliers. If you would like to learn more about the new obligations for Class 2 builders, designers and engineers, please read our blog.
Whilst registering with iCIRT is voluntary, it is worthwhile for building and construction practitioners to use a star-rating to gain a competitive edge. Consumers are more likely to choose professionals with a higher star-rating whose track record is transparent and whose brand is reputable. Registering with iCIRT can improve your credibility as a building professional, build confidence in your business and assist your market differentiation.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you require assistance with a Class 2 development matter or are needing further advice on strata law, please contact one of our experienced solicitors on (02) 9963 9800 or via our online contact form.
May 23, 2022 | Building and Construction Law
As of July 2021, reforms under the Design and Building Practitioners Act 2020 (NSW) and the Design and Building Practitioners Regulation 2021 (NSW) have come into effect to provide greater regulations for building and construction practices in response to a number of defective residential apartment blocks.
These reforms have implemented a compliance declaration scheme, as well as further registration and mandatory insurance requirements for practitioners. This article will outline the new obligations for practitioners, including builders, designers and engineers, which are aimed at ensuring a higher standard of safety and quality of work in the building industry.
What ‘Building Work’ does the law regulate?
Pursuant to the Regulations, buildings are separated into ‘classes’. Those that are covered by the new reforms are classified as Class 2 buildings, which are generally residential apartments. This would also include mixed use residential and commercial buildings. However, it is important for practitioners to note that the duty of care requirements extend beyond Class 2 buildings and includes single dwelling homes and other residential building works.
Registration Requirements
If you are performing design or construction work on Class 2 buildings, you are now required under the reforms to be registered. The Act defines the requirements for compliance by building and design practitioners as follows:
- A design practitioner is a person who prepares regulated designs.
- A principal design practitioner is a person who coordinates the provision of design compliance declarations.
- A building practitioner is a person who carries out building work, or a person who is the principal contractor for the work.
The requirement of registration includes minimum qualifications, experience, knowledge and skills in respect of the various classes of practitioner. Designers and builders will also be required to comply with the prescribed Code of Practice and must continue to satisfy professional development requirements in order to maintain their registration under the Act.
There are penalties if a building or design practitioner:
- Fails to provide compliance declarations;
- Makes false or misleading declarations; or
- Makes declarations without the requisite registration.
Compliance Declaration Scheme
The Regulations also require further detail for designs and compliance declarations which must be lodged by a practitioner before an occupation certificate must be issued. This lodgment must take place at four different stages of a project. These are:
- Before the building work commences, a building practitioner must provide a complete set of construction designs and compliance declarations;
- For each variation to a design, the building practitioner must lodge the varied designs and accompanying declarations no later than a day after the variation has commenced. This does not apply to minor variations that do not impact building elements or performance solutions;
- Before applying for an occupancy certificate the practitioner must lodge another compliance declaration, contractor document and variations statements on the NSW planning portal;
- Within 90 days after the occupancy certificate is issued, each regulated design and any other documents that relate to the building work must be lodged.
These required documents can only be provided to the Secretary of the Department of Customer Service by a registered design practitioner or registered building practitioner.
Insurance
From the 1st of July 2023, registered building, design and engineer practitioners will need to be indemnified under a professional indemnity insurance policy. The policy must cover the liability that could be incurred in the course of their work, as determined by the practitioner. These insurance policies must also apply retrospectively to any liability incurred from the point that the practitioner became registered under the new regime.
How Etheringtons can help
It is important that building practitioners are made aware of their obligations. Etheringtons Solicitors can provide additional information and advice to you regarding your building or property situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or via our contact form.
May 22, 2022 | Building and Construction Law
Terminating a building contract enables parties to discontinue their contractual obligations. The terms for termination are dependent on the terms of the contract and the circumstances involved. Therefore it is important that the contract is reviewed by a solicitor prior to enforcement and/or termination. If there has been a substantial breach or repudiation of the contract, termination can be made by express or implied agreement.
There are significant consequences for owners who invalidly terminate a building contract. This article will examine a recent case where the owners claimed the builder had breached their due diligence and thus the owners repudiated the contract. However they failed to establish the builder’s breach of due diligence, thus emphasising the importance for owners to fulfil all of their obligations when considering termination.
A recent case study: Patel v Redmyre Group Limited
The builder (Redmyre Group) carried out building works to renovate and restore a 4 storey residential terrace in Dawes Point, Sydney, for the owners (Nandini Patel, Harsh Jain and Jainco Services Pty Ltd). The building contract required building completion within 32 calendar weeks from the date of commencement. At the end of 32 weeks, the building was not complete. The owners took the following actions:
- 20 February 2019: the owners issued a ‘show cause’ notice demanding a schedule of works and estimated time for completion.
- 7 March 2019: the owners issued a notice of termination with immediate effect due to the builder’s alleged breach of the contract and statutory warranties contained in section 18B of the Home Building Act 1989 (NSW).
- 4 April 2019: the builder responded noting their intention to rectify the defects and seeking access to the site. The owners did not provide this requested access.
At first instance, the owners alleged that the builder failed to progress the works and exercise due diligence. The owners claimed $215,683 in damages for incomplete works and an additional $130,000 for delay. The builder alleged that the delay was beyond their control for factors including the owners’ direct interference and variations from the initial works.
The NSW Civil and Administrative Tribunal held that the owners did not establish that the builder had breached their due diligence obligation and instead issued a notice which was not in accordance with that required by the building contract. It was found that the owners repudiated the contract in their letter dated 7 March 2019, but the builder had not terminated the contract given their request to return to the site. Repudiation occurs when one party to the contract expressly or implicitly demonstrates that they are either unwilling or unable to perform their contractual obligations (see DCT Projects Pty Limited v Champions Homes Sales Pty Limited).
No damages for delay or incomplete works were awarded as the owners had failed to mitigate the loss and provide the builder with reasonable access to rectify the defects as required by the Home Building Act 1989 (NSW) section 18BA(3). This was upheld by the Appeal panel in the NSW Civil and Administrative Tribunal (Consumer and Commercial Division). The owners’ appeal was dismissed and they were ordered to pay the builder’s costs.
Valid termination for breach of due diligence
Valid termination can occur in circumstances where the owners can prove, on the balance of probabilities, that the builder has not proceeded with due diligence and within the time stipulated in the contract, as this would breach the statutory warranties which are considered to be implied terms of all building contracts. This requirement of due diligence is breached when a “failure to proceed with that degree of promptness and efficiency that one would expect of a reasonable builder who is undertaking a building project in accordance with the terms of the contract in question” occurs (see Re Stewardson Stubbs & Collett Pty Ltd v Bankstown Municipal Council). The length of time considered reasonable must be taken into account if construction is delayed for circumstances outside the builders’ control, such as an exclusion from the site by the owners as in the above mentioned case.
Obligations on the owner
The onus is on the owner to establish this breach of due diligence, but also to take reasonable efforts to mitigate their own loss and allow reasonable access to the site for builders seeking to rectify any defects according to section 18BA of the Home Building Act 1989 (NSW). In the Patel v Redmyre case, the owners merely proved that the builder had not achieved practical completion by the date specified in the building contract, and failed to take into account the rate of progress of the works on site. They then deliberately, and unreasonably, excluded the builder from accessing the site, thereby failing to meet these obligations.
In the event that a builder defaults on an obligation within the building contract, such as not completing the building works in a reasonable time, the building contract will typically include a notice clause. Under this, the owner is obligated to give appropriate notice of termination of the contract, in accordance with the specified terms of the building contract.
In the case study, the owners were found not to be entitled to claim damages for defective or incomplete work, or delay, as a result of their invalid termination. The Tribunal held that the owners’ letter dated 20 February 2019 was not sufficient notice and the builder was not given sufficient capacity to rectify the breach within a reasonable time frame. Failing to strictly follow the requirements of the notice clause within the building contract may result in repudiation by the owner.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Etheringtons Solicitors can assist with if you need further advice or assistance with construction or contractual law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
