Where something is found to be defective in building work, there are two possible causes of action that can be sought by an aggrieved party:
(a) A claim in negligence; or
(b) A claim in breach of contract.
Both of these causes of action may arise from the same facts and a decision will need to be made on how to prosecute the claim if litigation is the path that the party wishes to go down. Such a decision should only be made after proper legal advice has been obtained from a building defects solicitor. Although the same facts may apply, each cause of action is prosecuted differently and different remedies may be available.
Suing in negligence for defective work, requires establishing a duty of care, a breach of that duty, causation, and damages or loss suffered. Remedies available may include compensation, damages or an order for rectification. Suing in breach of a contract requires a pleading offer, acceptance, consideration, the terms of the contract, and the particulars of breach. Remedies available may include restitution, rectification, specific performance (rescission is unlikely for building defects in a building contract, unless it can be proved that the defects are so severe that they go to the nature and value of the entire structure itself).
Examples of building defects could include:
- Poor workmanship;
- Failure in joinding;
- Unprofessional tiling;
- Pealing paint;
- Cracks in walls;
- Gaps between bricks;
- Water leaks;
- Uneven ledges;
- Uneven floors;
- Defects in plumbing;
- Defects in wiring and electrical services;
- Defects in the installation of fixtures; and
- Damage to any part of the property caused in due course of the construction (such as scratches, bumps, broken or cracked windows).
The above is not an exhaustive list. Depending on the type of building being built, its purpose, and the terms of the contract itself, defects can take many forms. A Building and Construction Lawyer will be in a position to assess the facts of the case and ascertain which is the most appropriate course of action to take for the resolution of a building defects dispute. Progress payments may be withheld pending the resolution (subject of course to a party’s rights to do so) and this may incline a builder to come to the negotiating table. Insurance options may also be explored to see whether a resolution can be obtained through those channels. A professional association may also be available to assist in a mediation of the case. All of these matters will need to be addressed before any building defects litigation is commenced before a Court.
Understandably, a party wishing to move into a home upon completion, or a builder wishing to be paid what he is owed for work he believes he has been completed, will want the matter resolved as soon as possible. Whoever's a party to the dispute may need proper building defects legal advice and will need to be obtained before any action is taken.
If you require assistance with a building defect dispute in your building and construction matter you may wish to contact our office by telephone on (02) 9233 4048 or send an email to email@example.com and make an appointment to see one of our solicitors in our Sydney CBD head office. By appointment, we can also make a time for you to see one of our lawyers in one of our offices. Please peruse our "Locations" tab for a complete list of our offices.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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