What are they?
Building disputes commonly arise from disputes relating to non-payment for work, disagreements of the scope of work, poor workmanship/defective work, significant delays, abandonment of works and unlicensed works. These disputes can cause significant delays for both parties and incur considerable costs.
What is the claim process?
Before deciding to take your claim to court, you could take informal steps to try to resolve the dispute by speaking or writing to the other party. If this does not resolve the dispute, you may make a complaint to NSW Fair Trading. If the dispute is not resolved with the assistance of NSW Fair Trading, a claim can be made in the NSW Civil and Administrative Tribunal (NCAT) and NCAT can make orders against the other party.
What does NSW Fair Trading do?
NSW Fair Trading provides a free complaint handling service to protect the rights of consumers, businesses and tradespeople in disputes. Under the Home Building Act 1989 there is a 6 year warranty period for major defects and a 2 year warranty for minor defects.
A Major Defect is defined as a defect in a major element of the building due to defective design, workmanship or materials, or failure to comply with the National Construction Code structural requirements. A ‘major element’ of the building is considered to be any load-bearing components such as flooring, foundations, footing, walls and beams, fire safety systems and waterproofing.
A Minor Defect can include blemishes, thin cracks, corrosion, dents and uneven finishes.
Fair Trading NSW will assign an investigator to your matter who may attend the site, conduct an investigation and make orders. These orders can include but not limited to rectification orders for a builder to fix the defective work. However, if the dispute is too complex the investigator may not make any orders. In this case, an application can be made to NCAT to make appropriate orders.
What does NCAT do?
If your claim is not resolved by NSW Fair Trading or an order is not complied with, you are able to make a claim with NCAT.
NCAT is a specialist tribunal that hears matters involving home building disputes up to the value of $500,000.00. Home building claims are heard in the Consumer and Commercial Division of NCAT. Common home building orders NCAT makes include but are not limited to home owners non-payment for building work, building work not carried out as agreed in the contract, incomplete or defective home building work and insurance claims. NCAT can also make orders requiring parties to engage in alternative dispute resolution before being heard in the Tribunal.
You should seek legal advice prior to commencing any claim in NCAT. Legal advice may be limited to assisting you to prepare the application yourself and advising you about the process, or you may engage a lawyer to act for you in the proceedings. NCAT will usually permit a party to be legally represented if proceedings involve a claim or dispute for more than $30,000.00.
At WMD Law, we have a team of solicitors with extensive expertise in commercial and business law. If you would like assistance to make or defend any home building claim, please contact Dean Groundwater, Anika Fleet or Matthew Coulter or call our team on 9525 8688. We also invite you to download our free Essential Business eGuide.
