General Procedures and Requirements – Building and Construction Issues and Strata Issues

15/09/2022

Watson & Watson Lawyers have for many years acted for parties involved in building and construction industry and in relation to issues arising in connection with Strata Schemes.  We have advised Principals, Home Owners, Builders, Subcontractors, Consultants, Designers, Certifiers, Lot Owners, Owners Corporations and Strata Managers in relation to such disputes.

Initially if you are likely to be in a dispute, it is important for us to understand the nature of the dispute and in particular, the factual background to the dispute.  We usually request that this be provided in a concise manner and a particular format.

It is critical that we consider with you:

1.       The ambit of the dispute.

2.       The possible parties to the dispute.

3.       The legal basis of any rights or obligations.

4.       The appropriate time limits in which to bring proceedings or defend proceedings.

5.       The appropriate jurisdiction for example, in which Court or Tribunal or other process is required to determine the dispute.

There are many different time limits which apply. In addition to limitation periods, there are many default positions that apply.

One needs to consider what is the appropriate jurisdiction being Court or Tribunal in which a claim should be brought and the limitation of jurisdiction in particular, Courts or Tribunals. 

If there is a limitation period as distinct from a default position once it has expired, the Defendant has a Defence to the claim.  The Defence is not based on merit as to the outcome that would have occurred if the claim had been brought within the limitation period but is as a result of the limitation period and the consequences of not commencing proceedings within the limitation period.

A few of many different circumstances in which there are differing time limits and limitation periods include:

1.       Claim in Contract.

2.       Claim for breach of a duty.

3.       Claim under a particular Acts for example, the Building and Construction Industry Security of Payment Act.

4.       Claim under a document for example a Building Contract.

5.       Proceedings commenced in a Court or Tribunal.

In addition, one needs to consider how you would establish your claim or defence.  Similarly, we would consider the possible issues that your opponent may raise and what is the evidence that is required and source of the evidence including the appropriate the person or persons who will be required to enable you to present your evidence in support of your claim or in defence of the other parties claim.

Evidence should be obtained at an early stage.

Often we recommend that experts be engaged at an early stage if the issues concern, a building defect case or a claim that the Owners Corporation failed to maintain common property.  Usually it is our initial position that the appropriate expert should be engaged at an early stage.  We often recommend an initial conference to be attended by our client, an appropriate expert and a Senior Solicitor, usually the Principal Richard Watson.  Often this conference can occur at the site and often an initial opinion can be discussed at the initial conference so that the client is aware of the initial position in relation to the claim. 

As we have indicated in a further article the appropriate expert evidence is critical to a favourable outcome in a dispute.  If for example, the appropriate expert is engaged, that expert’s opinion should be taken into consideration as to how one approaches the resolution of the dispute. 

There are some particular cases for example, case seeking an easement where there are particular issues that do not usually arise in other types of matters.  Each case and factual matters should be considered to advise as to a proposed course to be adopted. 

In many disputes for example, in some strata matters the real issue is not the actual apparent dispute but other matters.  The earlier that these matters are considered the more likely that the appropriate outcome can be obtained either by way of negotiation or in the ultimate litigation. 

If you are in a dispute with the Owners Corporation or another Lot Owner or in dispute in your strata complex or in a building and construction dispute as a Homeowner, Builder and/or Developer, our experienced Lawyers at Watson & Watson can assist you in your matter as often times disputes which appear straight forward, can sometimes become complex and expensive.  Please contact Richard Watson Accredited Specialist Commercial Litigation in the stream of Building and Construction or his Personal Assistant Shereen Da Gloria to discuss your matter and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.