Building & Construction Disputes
Dispute Resolution & Litigation
Resolve building and construction disputes quickly so that projects can get back on track
At Attwood Marshall Lawyers, we offer up-to-date legal advice on building and construction law and the building and construction industry. Our top priority is ensuring you know your rights if a dispute arises, and helping you assert those rights effectively. Whether you’re a builder, engineer, homeowner, quantity surveyor, or subcontractor, we’re here to support you in resolving disputes swiftly so that building and construction work can continue.
Navigating the intricacies of construction contracts and related disputes can be challenging, especially given the various parties involved. That’s where we come in – our goal is to simplify the process for you. We will diligently guide you through your available options, equipping you with the necessary tools to effectively resolve your building and construction dispute while keeping costs in check.
Our team comprises expert building dispute lawyers, each with a wealth of experience, including partner, Charles Lethbridge, an Accredited Specialist in Dispute Resolution. Charles has a particular interest in building litigation having acted for both builders and homeowners in significant litigation in the Supreme Courts of New South Wales and Queensland, and in the Federal Court of Australia. As a firm, we have successfully represented plaintiffs in multiple class actions, including a recent case where we helped a group of plaintiffs win a lawsuit against a builder/developer for multiple building defects and misleading and deceptive conduct.
We take immense pride in having assisted numerous satisfied clients who entrusted their building and construction matters to our expert legal team. Don’t hesitate to reach out to us and let our construction dispute lawyers lead you toward a smooth and effective resolution.
Our building and construction services include:
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Making or defending a debt claim under the security of payment legislation
We have significant experience with recovering building related debts on behalf of clients, not only via the court system, but also under the Corporations Act 2001 (Cth), the Building Industry Fairness (Security of Payment) Act 2017 (QLD) (BIFA) or the Building and Construction Industry Security for Payments Act (NSW) (BCSOP). One such matter ran to the High Court where a legal precedent was set which still stands today.
The above legislation provides a streamlined way for parties to recover debts via an adjudication process which is separate from the court system.
The BIFA/BCSOP legislation was established to enable entities in the building and construction industry to quickly obtain adjudicated decisions which can be converted to, and enforced as, court judgments if required, without having to embark upon time-consuming, expensive litigation by the court process.
Defective building work
The Home Building Act 1989 in New South Wales and the Queensland Building and Construction Commission Act 1991, effectively govern residential building in those states. The legislation contains building licensing regimes, rules of conduct for builders, statutory warranty requirements, consumer protection provisions and requirements for dispute resolution processes.
Defective building work is generally separated into two groups:
- Structural defects; and
- Non-structural defects.
In Queensland, a structural defect must be reported to the Queensland Building and Construction Commission (QBCC) within 6 years and 6 months from the date of completion of the work. A non-structural defect must be identified and reported to the QBCC within 12 months from the date of completion of the work. A litigated claim must be commenced within the strict time frames also.
In New South Wales, a claim can be made by a customer in respect of a structural defect within 6 years from the date of completion of work. For non-structural defects, a claim can be made by customers within 2 years.
The classification of a building defect as a ‘minor defect’ or a ‘major defect’ is often the subject of litigation, the determination of which regularly comes down to competing expert evidence by third-party builders or engineers. This issue is critical with respect to the relatively short timeframe allowed for filing a defects claim for a minor defect. If a defect is considered minor, and you do not file a claim within the strict time frame, you will be ‘time-barred’ (prevented) from commencing an action seeking losses associated with the rectification of the minor defect/s.
Frequently Asked Questions – FAQs
Invariably, during the course of construction, a homeowner or building owner will want one or more variations to the design and construction of a build. Contract variations are one of the more common causes of disputes between builders and property owners. Legislation across Australia provides guidelines for variations to domestic building contracts, however, it is key to ensure that all variations are in writing and agreed to by the parties.
As a builder, you do not have to agree to a variation required by a homeowner if it is unreasonable, or if the homeowner is not prepared to pay additional money for the variation, if required. It may be the case that a required variation would alter the build (and the contract) in such a way as to amount to a repudiation of contract because the homeowner/building owner might be demonstrating that it is unwilling to comply with its agreed obligations under the building contract, or otherwise is demonstrating an intention to fulfil the contract in a manner substantially inconsistent with its agreed obligations. As a builder, in these circumstances, you might have a right to terminate the contract and seek damages from the homeowner/building owner.
If you suspect that your contract might have been repudiated, it is important to understand how to protect your position and avoid making mistakes that could unintentionally lead to repudiating the contract yourself.
As set out above, if there are defects to building works, homeowners have rights pursuant to legislation to pursue builders for rectification or for monetary losses to rectify. There are strict time frames within which to commence a legal proceeding in the tribunal seeking orders for damages for losses incurred as a result of defective building works. The timeframe for commencing legal action for minor defects is much shorter than the timeframe for pursuing a builder for major defects, such as significant engineering faults or a defect which allows water ingress to the building.
There are a number of ways to recover debts for building works not only via the court system, but also via mechanisms put in place pursuant to the Corporations Act 2001 (Cth), the Building Industry Fairness (Security of Payment) Act 2017 (QLD) (BIFA) or the Building and Construction Industry Security for Payments Act (NSW) (BCSOP).
Making a claim for a debt owed (a payment claim) under the above legislation is a simplified adjudication process separate to the court or tribunal system. Such mechanisms were enacted to enable disputes around building debts to be adjudicated upon swiftly to assist parties to move on without being tied up in litigation for extended periods of time.
There are strict time frames for making payment claims and there are a number of steps which must have been taken prior to taking this action.
Two years ago legislation was enacted in New South Wales which imposes multiple obligations on design practitioners (eg. architects), engineers and other specialists that engage in construction work. The new law imposes a duty on every person who carries out construction work to exercise reasonable care to avoid economic loss caused by defects and a statutory duty is now owed to each subsequent owner of land.
This is good news for builders who were previously often held as responsible in respect of defective works designed or planned by, for example, an architect or an engineer.
If you are a builder being blamed for defective building works which were caused by poor engineering plans, you may have grounds to defend any such claim and to cross claim against the engineer.