Building Claims – Choosing the Right Court or Tribunal

19/07/2016

When conducting building and construction claims in a Court or Tribunal, it is essential that a party chooses the right place to commence proceedings.  A recent case in which Watson & Watson, Solicitors received instructions over home building illustrates this point.

Watson & Watson, Building and Construction Solicitors took instructions from a Home Owner who alleged serious defects in a home. 

He had brought the property in 2009 and entered into a Contract with a Builder to construct a two storey house in 2010.  The work was finished in 2011.  After the house was completed the Owner noticed cracking in walls of the house.  Over time the cracking increased and the Owner contacted experts to obtain advice on what was causing this problem.

Shortly after that, the Owner realised that the cracking may have been caused by poor workmanship by the Builder, but also may have been caused by defective plans drawn up by an Engineer.  In the result, the Owner had a possible claim against both the Builder and the Structural Engineer. 

The Owner then commenced proceedings in 2014 in the NSW Civil and Administrative Tribunal (NCAT) against the Builder and the Structural Engineer.  The Owner in that case alleges against the Builder breaches of statutory warranties under the Home Building Act.  The Owner also claimed against the Engineer.

The problem for the Owner was that the Owner did not have a Contract with the Engineer and so the Owner was not able to proceed in NCAT against that Engineer. 

The matter became before a Tribunal Member who brought this to the attention of the Owner and suggested that the Owner discontinue his case against the Engineer.  That is what the Owner did.  The Owner continued the case against the Builder.  The Builder’s Solicitor indicated to the Owner that the claim should really be against the Engineer. 

On the facts, the claim should be against the Builder and the Engineer.  Just because NCAT has primary jurisdiction in relation to a claim against the Builder and has no jurisdiction to hear the claim against the Engineer in this case, proper consideration is required so that the case can proceed.

Recently the Owner consulted Richard Watson, experienced building and Construction Lawyer at Watson & Watson who considered the matter and suggested that the proceedings should be against both the Builder and the Engineer.  There would be difficulties if there were two separate cases one against the Builder in the NCAT and one against the Engineer in the District Court of New South Wales.  The problems are significant in particular where the factual matrix to be determined by the Court or Tribunal is interwoven as in this case.

Following review of the matter in accordance with advice from Richard Watson an Application was made to NCAT to transfer the building case from NCAT to the NSW District Court. 

This Application was successful.

In those circumstances the Application can proceed in the District Court against both the Builder and the Engineer.  The cases will be heard together as one. There will be a costs saving and the case will be conducted cost effectively.

In this case the Owner had previously sought advice from an experienced lawyer involved in Strata and Building and Construction related matters.

Our client was concerned enough to seek our opinion as to the course being adopted. As the proceedings have been transferred from NCAT to the District Court the matter can proceed and be determined in a logical and effective manner if the matter is not resolved by negotiations. 

If you have any enquiries or you have other concerns about the issues that you face please contact Richard Watson, experienced building and construction Lawyer or his Personal Assistant Shereen Da Gloria so that we can consider your circumstances and provided initial advice.

We are experienced in utilising all available possible remedies, circumstances including proceedings, negotiations, resolution by mediation or other processes.

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