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Joseph Agiato, Understanding The Law... Building & Construction Law


From: Blogger Man
Subject: Joseph Agiato, Understanding The Law... Building & Construction Law
Date: Tue, 18 Dec 2007 02:10:43 -0800 (PST)

Joseph Agiato, Understanding The Law... Building & Construction Law

  The following Q&A's have been provided to help you better understand Building 
& Construction Law.  Q. My next door neighbour has backfilled behind a 
decorative wall on one side of my property which is within my boundary and 
despite repeated attempts to stop this my neighbour continues to disregard my 
wishes. Is there anything I can do? 
 A. You need to retain a solicitor to write to your neighbour to serve them 
with notice that this practice is to stop and that they are to remove the 
backfill from your premises otherwise you will obtain equitable relief and take 
action against them for trespass. 
 Q. I went to a large well known building company which is involved in the 
design and construction of luxury homes. Some years ago I obtained a DA but 
construction has still not gone ahead as I had some reservations on the design. 
I have had a number of conversations with them and nobody seems to want to do 
what I want. What should I do in the circumstances? 
 A. There are a number of choices available to you including the following: 
 (i) Find another builder. (ii) Negotiate with your current builder to find a 
satisfactory way of having your instructions carried out. (iii) Buy the plans 
from them and have another builder do the building work for you. (iv) If you 
have signed a building contract with them then seek specific performance. (v) 
If there are misrepresentations involved then pursue your remedies at law. (vi) 
If there are any breaches of the Home Building Act, Trade Practices Act or any 
other Act then pursue your remedies there. 
 Q. I applied for a DA some time ago to build some home units and for a variety 
of reasons only limited work has commenced on site. I wish to maintain the DA 
and on sell the property which will be far more valuable if this can be done. 
What can I do? 
 A. Obviously if you allow the DA to lapse you will have to apply for a new one 
which you may find it difficult to obtain. Irrespective you will need to prove 
to the local council that substantial works have commenced on the site and 
provided you have enough time you should carry out substantial earthworks which 
may assist you in this regard. 
 Q. Do I have to go to the local court to take action against a builder for 
defects? 
 A. No. Often where small building matters are started in the civil claims 
court the CTTT will refuse to accept them as it considers the former venue to 
be a more appropriate one within which the matter is to be heard. 
 Q. Do solicitors have an automatic right of appearance before the CTTT? 
 A. No. If the value of a building claim before the CTTT falls below $25,000 
solicitors must approach the tribunal for leave to appear on behalf of their 
client. 
 Q. Do lawyers bring any value to proceedings before the CTTT NSW? 
 A. Yes. Often irrespective of the value of the matter before the tribunal 
complex contractual issues may arise where the member would appreciate some 
assistance in this regard. 
 Q. Do lawyers have any automatic right of appearance before the CTTT? 
 A. Yes. On matters over and above $25,000 up to the jurisdictional limit of 
$500,000. 
 Q. Are experts? reports important in building and construction and home 
warranty matters? 
 A. There is a significant variation in the types of reports which are required 
for a wide range of building matters. Often these reports go to the heart of 
the matter and serve to explain issues which are essential to the court or 
tribunal?s understanding of what has or has not occurred. In home building 
matters experts? reports are required not only to identify the range of defects 
but also to quantify and perhaps suggest rectification or repair as 
appropriate. 
 Q. When is home warranty insurance not required? 
 A. Where the value of the works is less than $12,000. 
 Q. How long is the defects liability period? 
 A. 13 weeks. 
 Q. For how long does home warranty insurance provide protection? 
 A. For six years. 
 Q. Are licensed builders required to perform all building work in NSW? 
 A. No. For a building work above $1,000 licensed contractors are required but 
with large building works that is, above three storeys, there is no current 
licensing regime for builders who service this area. 
 Q. What does home warranty insurance cover? 
 A. Formerly it used to cover both defects and the death, disappearance and 
insolvency of the builder, however today defects remain to be addressed 
directly by the builder with the latter three categories the subject of 
insurance. 
 Q. I have designed and constructed a number of houses over many years and I am 
concerned as to whether I could be pursued by a building warranty insurer where 
they have settled with the claimant and my involvement has been zero? 
 A. Yes. The old system was predicated on the basis that the insurer would 
either pay to have the works rectified or cash settle the matter. Irrespective 
once this had been done the builder would be pursued to recover the monies paid 
to the claimant. 
 Q. Are all defects recoverable from the builder? 
 A. Where the defects are within tolerance then neither rectification nor 
compensation can be claimed from the builder. 
 Q. Is it normal to prepay the builder prior to the commencement of works? 
 A. Where the value of building works is less than $20,000 a 10% deposit is 
required by the builder. Where the value exceeds this figure then only a 5% 
deposit may be claimed. As for other payments relating to the building works 
they may be either preclaimed or claimed during the course of construction. 
With most building contracts there is a retention which can be held back 
pending satisfactory completion of the works mainly to cover defects. 
 Q. Should a home warranty certificate be sighted before the builder commences 
work on site? 
 A. Yes. Although building warranty insurance is of limited value as it now no 
longer covers defects it is extremely important where builders or building 
companies go to the wall which occurs with greater frequency in times of an 
economic downturn. 
 Q. What should I do where I am physically threatened by the builder and I am 
dissatisfied with the progress and quality of the works performed? 
 A. First you should report it to the police. Second - retain a lawyer and 
obtain independent legal advice. Third - if you are in arrears bring the 
arrears up to date. Fourth - refuse to pay where the builder is clearly in 
breach of contract. Five ? check all variations to ensure that they are 
properly claimed and are within time. 
 Q. How effective is disputes resolution when dealing with Australian 
construction and infrastructure projects? 
 A. Parties in dispute are often dissatisfied with the disputes resolution 
procedures in contracts. Unfortunately disputes are widespread throughout 
Australia and are normally associated with cost overruns irrespective as to how 
or why they arise. Essentially the majority of parties are not satisfied with 
the time, cost, process and outcome of disputes resolution. A lot of this can 
be traced back to insufficient time being applied to disputes resolution 
clauses at the time of precontractual negotiations. As in all these cases very 
little time is spent on precontractual matters with some contractors preferring 
to issue documentation themselves without referring it for proper legal advice 
to avoid these issues. The fees charged in this area are not a cost but 
investment in the future and it gets back to the age old adage of being penny 
wise but pound foolish. Who can afford the increased costs of unsatisfactory 
disputes resolution or litigation when the real money should have
 been spent up front obtaining proper legal advice and assistance rather than 
throwing buckets of money at a process which will surely leave one party badly 
disadvantaged and potentially wearing substantial costs. 
 
 Nominate a Lawyer  is a network of carefully selected, highly qualified 
building construction lawyers in Sydney, Melbourne and

       
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