Claim badly drafted on behalf of Plaintiff; Defendant resolves for Minimal Payment

20/09/2016

In 2012 Richard Watson received instructions to act on behalf of Alan a Builder who had undertaken numerous projects in Sydney and had moved to Queensland in early 2012.  Vero Insurance Limited issued Home Owners’ Warranty Insurance in relation to 3 projects for which Alan was the Builder. 

As a result of Alan moving out of NSW to Queensland the Home Owners Warranty Policy was triggered as this is a deemed disappearance as leaving the Jurisdiction (New South Wales) is a deemed disappearance

Alan had been working as a Builder. The Architect for the 3 projects was the same and Alan was engaged as the Builder for each of the projects.  Each of the projects were renovations of existing residences within Sydney. 

Alan became seriously ill and was advised that he had to move to a warmer climate in Queensland. 

Through the Architect each of the Owners made a claim on the Home Owners’ Warranty Insurance (based on the deemed disappearance trigger event).  The Owners made false claims in relation to the extent of the work that the Builder was required to undertake.  In each of the cases the Builder was contracted only for part of the Building Works.  The Owners were undertaking significant parts of the works separately.

In light of the deemed disappearance the Owners made the claim on the Home Owners’ Warranty Insurance and despite the Builder being easily found (by for example the telephone directory) there was no attempted contact with the Builder in connection with the Owners’ claims.

The Home Owners’ Warranty Insurer assessed the matters, did not make an enquiry of the Builder, took the word of the Owners, assessed the claims (including defective work which had been done by others) and made payments to the Owners. 

The Home Owners’ Warranty Insurer thereafter pursued the Builder making claims for the reimbursement of the sums paid to each of the 3 Owners. 

The Builder became aware of the claim and in 2012 sought advice from Richard Watson in relation to the claim by the insurer.

After consideration by Richard Watson as to all the circumstances the numerous letters through 2012, 2013 and numerous discussions in an attempt to resolve the matter, the matter was not settled. 

Eventually the Home Owners Warranty Insurer issued proceedings and the matter was stood over initially. 

There were numerous issues as is often the case including the identity of the Builder. 

On a review of the facts it was ascertained that the claims by the 3 Owners on the Home Owners’ Warranty Insurer were based on alleged claims for defective work and breach of statutory warranty. 

On a further review of the Statement of Claim it was ascertained by Richard Watson that:

1.         The claim was in excess of $160,000.00.

2.         The basis of the claim in the Statement of Claim was a claim purely based on alleged negligence by the Builder.

3.         There was no claim against the Builder based on a breach of the Statutory Warranties.

4.         That within 6 months the claim for breach of Statutory Warranties would become statute barred.

Watson and Watson having obtained instructions from Alan requested particulars of the claim, filed a Defence to the claim and the matter progressed slowly. 

There were also further discussions.  Following the date of expiration of the statute of limitations in relation to a claim based on breach of Statutory Warranties, there were further discussions.  At this stage there had been no attempt by the Solicitors or the Plaintiff to seek to amend the Statement of Claim and claim against the Builder based on a breach of Statutory Warranties. 

Following the expiration of the Statutory Warranties there were further discussions and there was agreement to pay a settlement sum of $20,000.00 by extended monthly instalments in full satisfaction of any claim by the Home Owners’ Warranty Insurer and the proceedings by agreement were dismissed on the basis that each party pay their own costs.

The experienced team at Watson and Watson properly considered the matter, the surrounding circumstances, possible defences and all other critical matters and was able to settle the matter on excellent terms for Alan as a result of the considered approach to the matter.

In all disputes including proceedings there needs to be a proper consideration of all the issues that arise. 

The team at Watson & Watson with their experienced Building and Construction Lawyers have over the years ascertained that there are many ill conceived claims made, some of which, but not all, if framed in a more considered view would result in a better outcome for the claimant than the outcome achieved because of the lack of consideration of the whole of the circumstances surrounding the dispute. 

If you are Defendant to a claim you are not doomed to fail in all circumstances even if you believe that you have no defence to the claim. 

Further if you have a claim please contact Richard Watson and the experienced team at Watson & Watson to ensure that your claim is given the best opportunity in resulting in a positive outcome for you. 

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