Sunday, 17th February 2019

register | forgot password?

Did the Builder do the Work?

Thursday, 23rd May 2013

Many strata schemes now involve the conversion of existing warehouses into residential dwellings and the renovations of old structures for a “Chic” modern look. If you find yourself in this situation, you would be interested in a recent judgement by the New South Wales Court of Appeal, which is pertinent to your circumstance.

On 16 November 2012, the Court of Appeal, in effect, confirmed the decision of the Consumer, Trader and Tenancy Tribunal that a builder must be proven to have done work before any liability arises (Building insurers Guarantee Corporation v The Owners - Strata Plan No. 60848 (2012) NSWCA 375).  Some background about the facts of the case is necessary for the purposes of understanding the effect of the judgement.

FACTS

On 10 September 1997, approval was given for the conversion of the old building into a residential strata development.  The conversion involved internal works, except for the installation of some windows to the outer brick walls of the Building.  In the course of installing the windows, the Builder brought to the Developer's attention the inadequacy of the outer brick walls to prevent moisture penetration and the deficiencies in the waterproofing of those walls.  The Builder was instructed to ignore the deficiency, and the deficiencies in the waterproofing of those walls.  The Builder followed the instructions given by the Developer, but did not go so far as to confirm those instructions in writing.  There was no written contract between the Builder and the Developer for the works.  The works were carried out on a "do-and-charge" basis.  The Builder did obtain Home Owners Warranty insurance for the works.

When the Builder went into liquidation, the Owners Corporation made a claim for indemnity, under the Homes Owners Warranty insurance Policy, which was issued by FAI and administered by the Building Insurers Guarantee Corporation (BIG Corp).  The claim encompassed a number of defects, including water penetration and deficient waterproofing.  BIG Corp denied cover for this defect on the basis that this work did not form part of the contract works which the Builder (who was insured) was to perform.  As such, the Owners Corporation is not entitled to indemnity under the Policy for such works. 

CONSUMER, TRADER AND TENANCY PROCEEDINGS

The Owners Corporation lodged an appeal to the Tribunal, relying on its assertion that the works that had been carried out in breach of the Statutory Warranties implied by Section 18B of the Home Building Act 1989(NSW).  One of the Statutory Warranties include a warranty that "...if the work consists of the construction of a dwelling, the making of alterations or additions to the dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling...".

The Tribunal found in favour of BIG Corp on this point.  In the course of its decision, the Tribunal held that: "There was no contractual obligation to carry out any work to apply a waterproofing membrane to the exterior of the building.  Thus, the lack of such a membrane is not a breach of contract by the builder...The final aspect to consider in the obligation of a builder to construct so that the works are reasonably fit for occupation as a dwelling...I shall assume that the building is not so fit.  The answer is simply that to take such steps was beyond the contract of the builder.  The warranty does not come into play."

In other words, the Tribunal held that the Statutory Warranties would apply to only the works the subject of the Building Contract.  A Builder would not be required to perform any work to rectify an existing defect in the Building if such work does not fall within the scope of the works it is required to carry out under the Contract.  This is the case even where the Builder becomes aware of the existence of the defect in the course of the works.  It follows that a successor in title, such as an Owners Corporation, will not have the protection of the Statutory Warranties in respect such defects.

DISTRICT COURT DECISION

The Owners Corporation sought to appeal this decision in the District Court and that Court found in favour of the Owners Corporation.  The judge held that the obligation on the Builder was to make the premises waterproof.

COURT OF APPEAL

BIG Corp appealed against the District Court's decision to the Court of Appeal.  BIG Corp's appeal was successful as the appellate Court, in effect, agreed with the Tribunal's view.  The decision of the District Court was set aside and the matter remitted to the District Court for a determination according to law.

IMPLICATIONS OF THE OWNERS CORPORATION

The key implication of this decision for an Owners Corporation who finds itself in a similar circumstance is that the Owners Corporation cannot simply assume that it would be able to rely on the Statutory Warranties in respect of all defects affecting the common property.  This judgement confirms that the benefit of the Statutory Warranties is confined to only the defects arising out of works which the Builder was contracted to perform, and not more.

Further, this case emphasises the importance of undertaking careful investigations prior to the commencement of any action, where such investigations must include a determination of the scope of works of a Building Contract.

Bookmark and Share

Comment from raghav on Wednesday, 27th July 2016

Howdy, Great operate, I've book-marked this site and have an atmosphere We will be returning to this routinely. attendance device dubai

Comment from raghav on Thursday, 07th July 2016

Thanks for such a great post and the review, I am totally impressed! Keep stuff like this coming. Counsellor

Comment from raghav on Wednesday, 22nd June 2016

Excellent article. Very interesting to read. I really love to read such a nice article. Thanks! keep rocking. website los angeles

Comment from raghav on Tuesday, 07th June 2016

Your own website may be incredibly chatty. Will probably be therapeutic for a lot of. You need decided to go with getting some kind of work. teeth implants

Comment from raghav on Monday, 30th May 2016

Somebody carried out several high quality points certainly, there. I did so thus just about any research on the subject aside from found out almost all folks may very well believe your blog. corso droni

Comment from raghav on Wednesday, 11th May 2016

I've got to maintain i like take into consideration an in depth satisfying doc. Self-esteem! retain rocking. cape town catering

Comment from sana on Saturday, 09th April 2016

Great post i have to say and thanks for your information. Education is undoubtedly a sticky subject. Desfibriladores

Comment from qazxc23 on Saturday, 19th March 2016

This is the homepage for online tricks for free codes of itunes  so that it may be a lot fun to get gift cards codes online here.So please let me know if they work for you at the apple store for itunes music and videos.

Comment from sana on Monday, 14th March 2016

This is often excellent points We've got quit while the item actually reaches this site people just lately take a look at some thing clean aside from I need to claim i regard anyone operate within just attaining this unique. Roof Cleaning

Comment from sana on Monday, 15th February 2016

This is the case unvarying where the Maker suits cognizant of the actuality of the foible in the circuit of the process. Thailand detox

Search for services

Find tradesman or property services in your local area.

Search for services