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The High Court of Australia has recently affirmed that there are only limited opportunities for appeals against security of payment determinations by adjudicators.

A recent case Watson & Watson Solicitors conducted in the New South Wales Civil and Administrative Tribunal (NCAT) demonstrates the way in which Courts or Tribunals determine quantum meruit claims.

Watson & Watson have been involved in many cases involving building and construction in particular residential building issues considered in various Courts and Tribunals including particularly at the New South Wales Civil and Administrative Tribunal (NCAT) or its predecessor Consumer Trader and Tenancy Tribunal (CTTT).

Expert witnesses are under obligations of independence and an overriding duty to the Court and Tribunals to present their opinion and evidence accurately and without bias. These duties are well documented in Court cases and also in Codes of Conducts for Experts in various Courts and Tribunals. Providing reports and giving opinion and evidence in accordance with the Code including impartially on matters relevant to the area of expertise of witness overrides the Experts duty to a particular party.

An Owner will either engage a qualified Builder to carry out the work or may obtain a Home Owners Building Permit. This article relates to matters other than work undertaken by the Home Owner directly and in particular with a Home Owner Building Permit.

This was considered by the NSW Court of Appeal in 2005 in the case of Berwarrina Shire Council v Beckhaus Civil Pty Limited [2005] NSWCA 248 (Berwarrina case).

Watson & Watson have been acting for owners, Builders and others in proceedings brought generally by Owners or subsequent Owners who may be entitled to bring a claim in numerous jurisdictions including the Civil and Administrative Tribunal (NCAT) which has jurisdiction for claims up to $500,000.00. Other claims in excess of that sum are commenced in the District Court of NSW or the Supreme Court of NSW, each of them have jurisdiction.

There are thousands of disputes relating to the quality of building works in particular concerning the construction of residential property including units, apartments, townhouses, duplexes, houses. The Home Building Act 1989 deals with obligations and rights of the parties including the Builder and Owner.

One would have thought that the rules relating to costs would be simple. Unfortunately they are not. Each commentary that we have reviewed has dealt with costs without consideration of the whole of the provisions relating to costs. Assumptions have been made which do not always apply.

Subject to a few exceptions there is legislation including the Workers Compensation Act 1987, the Payroll Tax Act 2008 and the Industrial Relations Act 1996 by which a Principal Contractor may withhold payment to a Sub-Contractor if the Sub-Contractor fails to provide a Sub-Contractor’s Statement, in effect a declaration that the Sub-Contractor has paid all its obligations under the Workers Compensation Act, Payroll Tax Act and Industrial Relations Act.

The Home Building Act 1989 relates to the carrying out of residential building work. Prior to the Home Building Act one needed to look at the express terms of the Contract to determine the obligations of the parties.

More often than one would expect we find that Builders and Owners who enter into Agreements for the construction of renovations or new homes do not have agreements which are enforceable particularly by the Builder against the Owner.

There are many “standard form Contracts” which are in existence including NSW Residential Building Contract for Homes issued by Home Industry Association (HIA), Master Builders Association (MBA) or Australian Building Industry Contracts (ABIC) to name a few.

Often we at Watson & Watson are approached by an Owner or a Builder, where the Owner claims that all moneys have been paid for the building works and that the Builder will not provide the Certificates required to enable the issue of an Occupation Certificate relating to work that has been undertaken at the home.

The Court of Appeal of the Supreme Court of New South Wales recently considered the obligations of a Claimant who had an Adjudication Determination in its favour for approximately $11 million in garnisheeing the Developer’s Bank Account.

In the Court of Appeal Decision Ku-Ring-Gai Council v Chan decided 7 September 2017. Ku-Ring-Gai Council as Certifier was held not liable to the Owner Builder or to the subsequent Purchasers. This was even though Council Inspectors inspected the works on several occasions and failed to identify defects or that the building was not in accordance with the approved plan. The Council issued an Occupation Certificate. The property has been occupied.

When building owners occupy premises and discover a building is defective, they will often bring proceedings against a builder alleging a breach of the building contract.

When two parties run a Court case and the Court makes a decision, generally the Court awards costs to the winner of the case. So if a Defendant wins its case, the Court will order that the plaintiff pay the legal costs of the defendant.

A recent High Court decision issued on 21 December 2016 has underlined the need for Builders and their lawyers to take care in conducting cases involving Security of Payments claims. That case was the decision of Southern Han Breakfast Point Pty Limited and Lewence Construction Pty Limited.

The Court of Appeal in New South Wales has recently considered an appeal on a case over the Security of Payments Scheme under the Building and Construction Industry Security of Payment Act 1999 (NSW) which could have greatly altered that scheme.

A recent decision of the NSW Supreme Court has confirmed it is vital that parties claiming for building defects obtain properly prepared Building Reports from appropriate and acceptable Experts to give evidence on your behalf in order to recover your losses.

The NSW Court of Appeal is currently weighing the issue of whether a person who has bought a defective building can sue the Certifier of the building.

A recent case in the New South Wales District Court illustrates the remedies of a purchaser who has obtained a Pre-Purchase Report before buying a property. In some circumstances, where that Pre-Purchase Report is incorrect, the Purchaser can take proceedings against the Author of the report.

The Building and Construction Industry Security of Payments Act, 1999 provides for a scheme for the quick recovery of money owing under Building Contracts to Sub-Contractors.

In Bellgrove v Elridge [1954] HCA 36, the High Court considered an appeal on a building case. The builder had been the plaintiff and sued on a building contract for unpaid moneys after most of the work in building a house had been completed. The owner had filed a cross claim for damages against the builder for damages for departures from the specifications which resulted in the house being unstable.

Liquidators have been appointed to Huxley Homes. Issues arise as to what rights Owners now have and what remedies are available to have your homes completed or defective work rectified.

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.

A Builder or Contractor who undertakes residential building work in New South Wales must comply with the Home Building Act.

Watson & Watson receive many enquiries concerning claims by Owners of Property against a Builder or somebody who undertook the building work which work turns out to be defective or unsatisfactory.

Watson & Watson, Building and Construction Solicitors were recently approached for assistance by a Subcontractor who had been served with a Payment Claim who was unsure of what restrictions if any, were applicable in relation to the SOP Act in relation to Adjudication.

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.

In early 2016 Richard Watson received a telephone call from a major Subcontractor client in relation to installation of facades on commercial properties. The Subcontractor had undertaken building works, and obtained a ‘favourable’ Adjudication. The Subcontractor received a demand from a well known Building and Construction Lawyer demanding that the Subcontractor undertake not to enforce the Adjudication Determination in its favour.

A Builder may claim against an Owner (in circumstances which are not excluded from the SOP Act) or a Subcontractor can claim against at Head Contractor for Construction Work pursuant to Construction Contract as defined in the Security of Payment Act (SOP Act).

When a Builder or other person provides goods or does work which is defective, what remedies does the Purchaser have? That is, what can the Purchaser of goods or services do to recover his/her loss arising from those defects?

Often (more often than should be) the Respondent to an Adjudication Determination (in this case the Contractor) who was being found and was required to pay a sum (the adjudicated amount) to the Subcontractor attempts to resist payment.

The Supreme Court imposed a drainage easement on the property of Frank Shi (‘the servient tenement’), as is within its power under s 88 K of the Conveyancing Act 1919 (NSW). On Appeal the decision by the Trial Judge was upheld in that the easement was reasonably necessary for the effective use and development of land owned by ABI-K Pty Ltd (‘the dominant tenement’).

Matthew was concerned that some of the building works at his home were defective. Matthew had previously (before discussing the matter with Richard Watson) engaged a Building Consultant to consider the matter and a Lawyer to assist Matthew in making the claim agent the “Owner Builder” who sold him the home.

In a recent case decided 25 January 2016 by a Tribunal Member at NSW Civil and Administrative Tribunal (NCAT) Lane Cove Council had been sued by an Owners Corporation for damages as a result of a claim that there are defects to the building constructed on behalf of the Council.

The Federal Government recently passed changes to the Law which may affect Building Contracts, with those changes scheduled to commence in November 2016.

Watson and Watson received instructions from a Subcontractor who provided formwork and other associated works to a Contractor who was undertaking civil works for the Principal.

Building Licences in New South Wales are issued by the New South Wales Government.

A person who applies for a Building Licence in New South Wales can often find the process complicated. New South Wales law requires that a person who applies for a Building Licence should not only have sufficient education but also enough experience being supervised by a Builder. The rules in New South Wales set out the required building experience, which can involve working on building projects under the supervision of a registered Builder.

Is the finding of the Adjudicator binding or appealable? Is such a finding of the Adjudicator bulletproof? Changed since the decision of the Supreme Court of Appeal.

A selection of recent Building & Construction matters in which we have acted that it will provide prospective clients with a good indication of the type and complexity of matters we handle.

Remedy for Builder’s failure to comply with Work Orders issued by NCAT.

Under the Access to Neighbour Land Act 2000 (the Act) in certain circumstances you can obtain access through your neighbour’s property to enable you to undertake building work on your property.

Developer agrees to purchase Home with defective structure from Purchaser, Home Owner at full value on basis no defects. Developer pays legal and consultants Costs of Home Owner.

Home Owners’ legal and consultants costs in excess of $100,000, Home Owners’ out of pocket claim for breach of statutory warranties and defective work.

Home Building Act - Important rights of Owner or subsequent Owner provided by Statutory Warranties Contract prior to 1 February 2012 - Limitation Periods for bringing claim. Now’s the time to consider your rights - don’t delay.

Owner Recovers Significant Damages from a Tradesman at great cost to the Tradesman (in excess of $50,000) who was engaged to undertake work at his house but failed to undertake those works – negotiation may have resulted in better outcome.

Owners Corporation recover from the Builder substantial sum (almost $1million) by negotiation to enable rectification of defective plumbing works Aquatherm installation - second opinion justified

The Supreme Court of Appeal on 29 June 2015 has considered a case involving the above question. In 2003 Ms Dandris and Mr Williams purchased a property in Dover Heights and lived there and in about 2010 Mr Williams and Ms Dandris set about major renovations at the property. Ms Dandris obtained an owner/builder permit.

Unfortunately in our experience at Watson and Watson it is more common now to have an Appeal lodged against a Decision by a Tribunal Member of NSW Civil and Administrative Tribunal (NCAT) or its predecessor Consumer Trader and Tenancy Tribunal (CTTT) in exercising issues relating to Building and Construction disputes.

How Does the Building Consultant Affect your Claim – Care Required in Selection Process of Building Consultant.

Garry approached Richard Watson after receiving a claim in the Consumer Trader & Tenancy Tribunal (CTTT) from the Purchaser of a home which he had built and which was sold in November 2012. Garry built the house having obtained an Owner/Builder Licence. The Purchaser from Garry as the Owner sought damages for a breach of the statutory warranties provided for by the Home Building Act 1989.

In 2013 Arthur approached Richard Watson seeking advice as he had received a Judgment against him from a Purchaser of a property from him. Arthur had previously built the home and sold it to the current Owner.

Arthur approached Richard Watson after receipt of a Judgment which was given against him as a builder in circumstances which were procedurally unfair. Following instructions Richard Watson took steps to investigate the matter and the Judgment was set aside. The Owner was ordered to pay Arthur’s costs in relation to the Appeal.

David Quinn was approached by a young married couple with infant children who had purchased the “Dream Home” in a satellite suburb of Campbelltown in the early 1980s. The young couple’s “Dream Home” collapsed around them in 1984.

Watson & Watson act on behalf of the Home Owner in relation to a claim against a Builder which became insolvent and was unable to complete their many projects. Generally, Creditors were out of pocket and an arrangement was entered into in which some Creditors would rank in the administration and some homes which were incomplete would be completed, in effect, with the assistance of the insurer under the Home Warranty Insurance.

This e-Bulletin is to make builder members aware that on 1 September 2010 all building certification work undertaken by a council, must be undertaken by a council officer who is an accredited certifier under the Building Professional Board certifier accreditation scheme.

This paper will focus upon some practical issues that arise in relation to the use of an expert to make a determination. It is hoped that the matters which are identified will assist in avoiding pitfalls that may be overcome in drafting an agreement to submit a dispute that may arise under it for expert determination and also to identify the factors which circumscribe court action which might arise as a result of such a determination.

The Dividing Fences Act provides that adjoining owners of property are required to share equally the costs of a “sufficient dividing fence”, what is a “sufficient dividing fence” will depend upon all the circumstances of the case.

We refer to our article 1 December 2015 relating to the appointment of a Compulsory Strata Manager to exercise the functions of the Owners Corporation such as when an Application is made to the New South Wales Civil and Administrative Tribunal (NCAT) by a lot owner(s) when the lot owner(s) is of the view that the Owners Corporation is not functioning properly.

Unfortunately there are thousands of cases involving Lot Owners in disputes with the Owners Corporation as to the obligations of the Owners Corporation. One of the areas of great dispute is the loss to Lot Owners due to the Owners Corporation’s failure to properly maintain the property.

The Owners Corporation raises money to undertaken their obligations which include for example, the maintenance of the common property (namely all property other than the individual Lots).

The Strata Schemes Management Act 2015 (SSM Act 2015) has now come into effect and there are various cases dealing with the operation of that Act.

One would have thought that the rules relating to costs would be simple. Unfortunately they are not. Each commentary that we have reviewed has dealt with costs without consideration of the whole of the provisions relating to costs. Assumptions have been made which do not always apply.

When one buys a unit, townhouse or villa in New South Wales, one usually acquires an interest in a Strata Scheme. Strata Scheme lots are covered by Strata Scheme Management legislation such as the Strata Schemes Management Act, 2015 (SSM Act 2015) in New South Wales.

From December 2016 there has been a change to the strata laws since the introduction of the Strata Schemes Development Act 2015 (SSD Act). This Act refers to the obligations and processes that apply in relation to strata renewal process, by way of collective sale or redevelopment of the strata.

From 30 November 2016 there has been a change in the strata law with the introduction of the Strata Schemes Development Act 2015. This act refers to the obligations and processes that apply in relation to strata renewal process, by way of collective sale or redevelopment of the strata.

At Watson & Watson we receive many enquiries from Lot owners who have suffered losses as a result of the failure of the Owners Corporation to properly maintain the common property. There has been difficulty in the past in recovering those losses.

In a recent case decide by the NSW Civil and Administrative Tribunal (NCAT) in August 2017 NCAT ordered that the Owners Corporation pay the Lot Owner $55,943.24 due to the failure of the Owners Corporation to properly maintain the common property. This was essentially to cover loss of rent suffered by the Lot Owner.

Watson & Watson commercial litigation Solicitors, in particular in relation to building defects, building disputes and building issues are experienced and can provide you with cost efficient advice.

Every person who has purchased a unit which has been renovated will have an issue as to who is responsible for any losses, damages etc if something goes wrong with the building works.

There are many thousands of home units in Sydney which are within the Strata Scheme. Many of the units are relatively new and there are many older style blocks of units. Strata title units have been in existence for more than 50 years.

A recent Supreme Court case highlighted a difficulty for Owners Corporations which bring cases against Builders or other parties. The recent case of the Owners Corporation – Strata Plan 64415 v Serman decided that it was possible that a Defendant to a claim bought by an Owners Corporation may obtain in the appropriate circumstances, an order that the Owners Corporation provide security for costs as a precondition of the Owners Corporation proceeding with its case.

Generally, the Owner’s Corporation enforces breaches of the by-laws by an individual lot owner in the strata scheme.

The model rules on keeping of pets provide as a first option that it is possible for owners or occupiers of lots to keep animals so long as those owners or occupiers give written notice of their intention and they make sure the animal stays within the lot, is supervised on common property and the owner cleans up common property areas if required.

In late 2016, the NSW government introduced new laws regarding smoking. The laws allow a strata scheme to adopt new “model rules” covering these topics.

Recent Amendments from December 2016 makes it easier for Lot Owners to recover losses due to failure by Owners Corporation.

There have been very extensive changes to the Strata Laws as from 30 November 2016.

We received instructions to advise the Owner of one unit in a block of 4 of which all of the other 3 units are owned by a single owner who had caused damage to our client’s unit caused by work undertaken by the Owner who owns the other 3 Lots in one of the units above our client’s unit.

In Strata Law disputes sometimes an Owners Corporation makes a resolution in a meeting or makes a By-Law that comprises a rule that some lot owners cannot use and enjoy common property.

In the decision of Thadani the Owners Corporation Strata Plan 46619 [2015] NSW CATCD 153 Senior Member Meadows ordered that the Respondent the Strata Owners Corporation pay a pecuniary penalty in the amount $5,000. The Owners Corporation had failed to comply with an Order made against it to correct a Building Defect to the common property causing damage to an individual lot.

The rules and legislation governing strata law provide that in some cases, a Lot Owner can request that a Compulsory Strata Manager be appointed to a Strata Scheme. In order to have such a manager appointed, one must make an application to the New South Wales Civil and Administrative Tribunal (“NCAT”).

Often we at Watson & Watson experienced Strata Lawyers receive enquiries from Owners within a Strata Plan, the Owners Corporation or Strata Managers as to what can be done when the Owners Corporation is not functioning properly.

Owners of Lots in Strata Schemes often want to carry out work on their unit or townhouse. This article concerns the approvals required to carry out the work.

Watson & Watson are experienced Lawyers dealing with all aspects relating to Building and Construction and Strata related matters. Often Watson & Watson Strata Lawyers receive enquiries from existing and new clients and provide advice in relation to issues regarding the responsibility of the Owners Corporation (OC) and/or Lot Owners to maintain the property owned by a particular Lot Owner or often the common property.

In Strata Schemes, the Owners Corporation has the power to make changes to the rules of the Strata Scheme so as to do various things such as altering or adding to common property and adjusting the entitlements of Lot Owners. These changes are often made by making new rules or “by laws”.

The New South Wales Government proposes to change the law relating to strata properties. The change to the law was to commence on 1 July 2016 however has been delayed.

In Strata Schemes, the Owners of Lots and/or the Owners Corporation can in certain circumstances apply for the appointment of a Compulsory Strata Managing Agent. Such an application is made pursuant to Section 162 of the Strata Schemes Management Act, 1996. The circumstances in which a Compulsory Strata Managing Agent may be appointed include where there are events such as a failure to keep records or ongoing disputes between Lot Owners.

Is Local Council or Private Certifier’s approval required and does Owners Corporation have to sign the Application? – Depending on the works sought to be undertaken. Can a By-Law protect the overall strata building? Yes to an extent. Act now before a dispute arises.

Watson & Watson have received many enquiries as to challenging by-laws more particularly by-laws which have not been approved by an Owners Corporation.

What are the consequences? Is there an automatic right for the Owners Corporation to obtain an order for reinstatement of the common property? No. Proper documentation would have saved this dispute.

Strata laws were first introduced in New South Wales in the 1960s and now most units and townhouses or other community accommodation are Strata and are subject to the Strata Schemes Management Act 1996 as is amended from time to time.

Liability not limited to cost of repair Lot Owner may have claim for losses.

We have recently been approached by Lot owners (who were on the Executive Committee) of an Owners Corporation who have had the order made by the NSW Civil and Administrative Tribunal (NCAT) appointing a Strata Manager in place of an Executive Committee and the Owners Corporation to undertake the management of the Owners Corporation.

Right to appoint Strata Manager in place of the Executive Committee and Owners Corporation - Section 162 Strata Schemes Management Act 1996.

In June 2015 the Owner of a lot in a Strata Plan consisting of 4 valuable/residential lots in a harbour side suburb of Sydney, approached Richard Watson, Strata Lawyer in Sydney to assist in relation to an Adjudication Application for approval for significant works and other related matters including an exclusive by-law which had been rejected on numerous occasions by the Owners Corporation.

Often at Watson & Watson we receive enquiries as to the drafting of by-laws for all aspects of strata living. Strata living is living in relatively confined areas with neighbours who are brought together essentially as purchasers or tenants of homes. The Owner of a unit has little choice as to who are the Owners or Occupiers of the adjacent units.

Attached is a letter from the Department of Fair Trading to the Principal, Richard Watson seeking his views on the drafting of the Strata Schemes Development Bill 2015 and Strata Schemes Management Bill 2015 before they are introduced into the NSW Parliament. If you wish to make any Submissions in respect of these Bills, you should send your Submissons to policy@finance.nsw.gov.au by 12 August 2015.”

Recently Mark approached Richard Watson for assistance to respond to a claim by an Owners Corporation with demands concerning an alleged breach of a by-law. Mark was concerned that he was targeted in that there were other blatant breaches by others within the strata complex and there appeared to be no action taken against the other owners for those breaches of the same by-law.

In 2014 Paul who owned a Unit in a complex at Manly approached Richard Watson as Paul had water damage to his Unit. Above Paul’s Unit was a balcony which formed the roof of Paul’s Unit. The balcony was used by the Owner of the Unit on the next level above.

Watson & Watson strata lawyers can help the owners of strata lots and Owners Corporations and executive committees resolve disputes involving defective building works by the original developer or other building contractors including disputes with builders, subcontractors, consultants, architects and engineers where the building work is faulty either by way of faulty work or faulty material or inappropriate design and other related issues.

Watson & Watson’s building and construction lawyers have many years of experience resolving building disputes, including those relating to work undertaken within a Strata Scheme.

When you buy strata title property you automatically become a member of the Owners Corporation (or the Body Corporate).

“Some small light has been shed on the whether legal costs can be included in a suit by an owners corporation for strata dues.” “An owners corporation should include in any action for contributions an amount for costs…and should be ready ay any contested hearing to provide an estimate of its costs…”

A Section 109 Certificate is a certificate issued by the Owners Corporation of a Strata Scheme, containing detailed financial information about a specific ‘lot’, and information about the management of the scheme.

Watson & Watson have lawyers experienced with strata titles and other multi ownership of property such as company titles with over 20 years experience handling strata matters, ranging from those that arise within residential strata schemes, commercial strata schemes and industrial strata schemes and company title ownership. Watson & Watson act for Owners Corporations, Strata Managers, strata title property owners, and developers of strata properties.

The Civil Liability Act 2002 (the Act) in New South Wales creates the concept of concurrent wrongdoers who may have several liability for a Plaintiff’s loss in certain circumstances. It is critical to ascertain whether the concept of a concurrent wrongdoer under the Act is applicable in your case and how it is to be managed by each of the parties to the dispute.

The Federal Government recently passed changes to the Law which may affect Building Contracts, with those changes scheduled to commence in November 2016.

Watson and Watson received instructions from a Subcontractor who provided formwork and other associated works to a Contractor who was undertaking civil works for the Principal.

When you buy strata title property you automatically become a member of the Owners Corporation (or the Body Corporate).

Watson & Watson act on behalf of the Home Owner in relation to a claim against a Builder which became insolvent and was unable to complete their many projects. Generally, Creditors were out of pocket and an arrangement was entered into in which some Creditors would rank in the administration and some homes which were incomplete would be completed, in effect, with the assistance of the insurer under the Home Warranty Insurance.