Statutory Warranties:

Certain statutory warranties apply to building and construction contacts in New South Wales. These warranties establish the rights and liabilities of parties who have entered into an agreement for the construction of a building project, whether it is residential or commercial in nature. According to the office of Fair Trading of New South Wales:

“Even if these warranties are not written into the contract you sign, the law says that they still apply to the work you are having done on your home. Statutory warranties are in effect for 6 years for structural defects and 2 years for non-structural defects, commencing from the date when the work was completed.” [1]

The warranties which are implied through the operation of statute are as follows:

1. All work performed by the builder will be performed in a “proper and workmanlike manner”;
2. The plans and specification which are included in the contract will be adhered to by the builder;
3. The materials used in the construction of the building will be appropriate to the project;
4. All materials utilised will be new, unless otherwise specified;
5. The provisions of the Home Building Act 1989 (NSW) will be adhered to by the builder as he discharges his duties;
6. All work will be completed with “due diligence”;
7. All work will be completed in time or within a reasonable time;
8. The completed structure will be fit for its purpose; and
9. The completed structure, if it is intended for residential habitation, will be “reasonably fit to live in” where that work includes:
   1. Construction of the dwelling;
   2. Affecting alterations, changes or additions to the dwelling;
   3. Renovation of the dwelling;
   4. Repair to the dwelling;
   5. Decoration of dwelling; and
   6. Protective treatment of the dwelling.

Building and construction litigation can arise in a dispute concerning any of the aspect of the statutory warranty listed above. The litigants to a dispute concerning a statutory warranty will need to arrange a Warranty Solicitor to consider the facts of the case in light of the updated case law. The law is a constantly evolving creature and updated decisions of Courts and Tribunals may have cast a different light on how certain warranties may be interpreted in relation to the unique facts of each case. The warranty lawyer will need to assess the law against the evidence before forming a view and providing proper statutory warranty legal advice to his client.

Issues relating to proportional liability can be the responsibility of developers, the rights of owners and future owners of property, the implication of breach of warranty on insurance claims and the time frame in which claims should be made and limitations periods. All of these matters will need to be taken under consideration by any building and construction litigator dealing with a dispute involving a statutory warranty.

The benefit of the Navado Building and Construction Law practice team is that it is integrated into other areas of civil and commercial litigation and can therefore facilitate a comprehensive legal treatment of a dispute in Building and Construction Law with reference to the general principles of Statutory Interpretation, Contract Law and Professional Negligence.

If you require assistance in relation to dispute concerning a statutory warranty, you may wish to contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and make an appointment to see one of our solicitors.

[1] “Contracts – Statutory Warranties” Office of Fair Trading website (undated) <www.fairtrading.nsw.gov.au> (accessed 10 December 2013).

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.