Time is NOT a Traveller: A Builder’s Right to Fix
Posted on February 02, 2017
A recent decision of the District Court of South Australia considered a home builder’s right under the Building Work Contractors Act 1995 (SA) (BWCA) to an order that it fix defects instead of paying a homeowner to have someone else do it. The decision, even after a long period had passed since the building defects emerged, was that the delay does not stop the builder from fixing the defects.
In Summary
The action had been underway for six years before the trial and not even this meant the builder had lost the right to fix the defects.
Arguments were made for and against whether an order to fix was appropriate. The owners sought compensation under section 37(6)(b) of the BWCA. The builder argued that if there had been a breach of the statutory warranties in section 32 of BWCA, it should have the right to fix the defects and replace defective materials.
What you need to know
Even though the builder obtained an order to fix the defects, the Court was not convinced that the builder would fix the defects properly. It was ordered that the builder employ a licensed building work contractor to do the remediation work at its cost within a set time.
There were also materials, in this case, certain bricks, that were delaminating and in the worst case looked like the centre of the brick had been “scooped out” that required replacement. The implied warranty that the materials be good and proper had not been complied with. As the Court was not convinced that the builder would replace the defective bricks, an order was made that the builder pay the cost of the replacement bricks.
Importantly the Court said that the loss can be measured only by determining the amount required to fix the defects to give the owner the same building as that called up in the contract. To conform with the builder’s obligations, the remediation work must be necessary and reasonable and does not depend on whether or not that work has been, or ever will be, carried out. But the outcome here was different!
The message
If you are a builder be mindful that even though you may be entitled to fix defects a long time after you finished the build, you can be ordered to pay someone else to fix your work if you are unconvincing in your argument that you can do it properly. That is something that will be weighed up once a hearing has been held. If you are in a position where you are found not to be capable of fixing defects and there are defective materials, you'll have to pay for those too.
Be proactive in fixing defects and address the problem when it first comes up if you can. If you don't then it could come back to bite you.
If you have any queries about the operation of the BWCA or need specific advice about a legal issue, call us.