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 competence 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.