Building Claims
What if you have a claim against a builder for defective work and you do not want the builder to return to complete the repair work?
Section 48MA of the Home Building Act 1989 (NSW) provides that in determining a building claim regarding defective work, the court or tribunal must have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.
This approach is makes sense at one level as the builder is familiar with the property and is likely to do the work quickly, to avoid any further issues.
In practice, this means that a builder may be given an opportunity, through the form of a rectification order, to fix his or her own defects. That is subject to agreeing on the defects and the way those defects should be rectified.
But what if I don’t want the builder to return to site?
If the owner of a property does not wish for the original builder to return to fix the defects, then they must submit appropriate evidence to demonstrate that in the circumstances of their case a rectification order should not be made.
This can include that the builder is not capable of doing the work, is unlicensed and/or the relationship is so poor that it would not be possible to complete the work.
Where it can be established that the builder should not return to the site, an order for damages to cover the cost of rectification by another builder may be made.
Galdona v Peacock (2017) NSWCATAP 64
The recent case of Galdona v Peacock provided guidance when a decision-maker may, or may not, make rectification orders.
The builder was ordered to pay the owner costs for replacement works regarding defective building work. The builder appealed, arguing that the decision-maker had failed to have regard to the relevant consideration as outlined in Section 48MA by not ordering rectification of defects.
The appeal panel summarised the decision-makers reasons for not making a rectification order as follows:
The relationship between the owner and the builder had broken down as a result of the defect. Hence the owner had lost confidence in the ability and willingness of the builder based on a reasonable approach;
The builder refused to acknowledge the poor standard of work carried out; and
The decision-maker had ‘severe reservations as to the contractor’s ability to rectify the work with due care and skill’.
As an owner, is there any steps I have to take?
If the builder is not given the opportunity to rectify the defects, they may be entitled to a discounted damages award. This may occur where the builder can demonstrate that the owner had acted unreasonably in declining or imposing conditions to rectify the work before commencing proceedings.
On this basis, it is important that before commencing proceedings against a builder, the owner gives the builder a reasonable opportunity to rectify the defects.
If you need advice in this area, as either an owner or a builder, contact Culleton Lawyers by calling 4243 7855 or emailing reception@culletonlawyers.com.au. We can help you through this process and make sure that you achieve the best outcome possible in your circumstances.