Successful building defects claim
Author(s):Michael Pickering B.A., LL.B. (Hons.), LL.M.
Publish Date: June 25, 2008
LAC Lawyers Pty Ltd in Melbourne acted on behalf of the owners of a house in Melton. The house was approximately 6 years old. Our clients had purchased it from a builder who in turn had purchased the house from the original developer.
Shortly after our clients took occupation, they noticed substantial cracks which had been lightly plastered and painted over for the purposes of the recent auction.
Our clients instructed us.
After investigation, LAC Lawyers Pty Ltd were able to identify the original builder. The clients had attempted unsuccessful private mediations through building disputes resolution facilities attached to the Victorian Building Commission in Melbourne. The original builder had attempted to evade responsibility upon the basis that, whilst his name was on the building permit, the developer had effectively taken over responsibility for construction after lock-up and was therefore responsible for rectification of defects as owner/builder. A further complicating factor was that the statutory warranty insurance policy had changed only one month before the builder had taken out the building permit and signed the building contract with the original developer. This change in statutory warranty insurance was critical. Previously, the effected owners, even those not in a direct contractual relationship with the original builder, were able to approach the statutory warranty insurer directly in relation to structural defects. After the change in statutory warranty insurance, building owners are required to pursue builders personally unless they are dead, bankrupt or have disappeared. The change in the law meant that the LAC Lawyers Pty Ltd clients were required to chase the builder personally.
A further complicating factor was that the developer had disappeared, that the corporate entity through which the builder had contracted had no identifiable assets and the subsequent owner, who himself was a builder, had arguably unintentionally exacerbated the level of defects which our clients were now experiencing by having significantly landscaped the property and changing live and dead loads within the structure.
LAC Lawyers Pty Ltd’s clients agreed to a very tight framework at the Victorian Civil and Administrative Tribunal. This timetable disadvantaged our clients when the builder produced defences stating that he had no liability for the defects because they had occurred after he had ceased being responsible for construction and had handed responsibility back to the developer as owner/builder. The builder also produced engineering reports stating that the cause of the defects was as a result of the activities of another property owner (the builder) or were caused by defective engineering slab design in circumstances where our clients had decided not to pursue the engineers.
LAC Lawyers Pty Ltd had to make a contested and difficult application on behalf of our clients as applicants to VCAT to vacate the trial date on only a few days notice. The application was bitterly opposed by the builder who was seeking to exploit a strategic advantage upon the basis that the builder recognised the owner had insufficient evidence to mount a proper case against the builder. After half a day’s argument, LAC Lawyers Pty Ltd were completely successful in persuading VCAT to vacate the trial date and allow additional time for the owners to obtain additional lay and expert evidence. This time was used effectively by LAC Lawyers Pty Ltd to obtain engineering reports and to pursue investigations with the original building surveyor and site engineer.
After useful informal settlement discussions between LAC Lawyers Pty Ltd and the solicitors acting for the builder, a compromise solution was effectively worked out providing our clients with reasonable compensation for repair costs and reimbursement of legal fees.
Our clients wrote to LAC Lawyers Pty Ltd advising as follows:
“Thank you so very very much for all your fantastic work and a wonderful outcome has been achieved. At this stage it seems unbelievable, it has been a long 2 ½ years and we are thrilled with the end result. Once again thanks so much and Michael have a great holiday, we will no doubt catch up when you return.”
Contact us now for Fast, Accurate and Timely legal advice
Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email
Back
|