Housing - eCircular - Watson & Watson Lawyers Sydney

Preparing for a Dispute – Expert Evidence - be prepared and seek Watson & Watson’s Advice at an Early Stage

15/10/2024

At Watson & Watson when an Owner or Builder or other person such as an Owners Corporation or Lot Owner for example, in relation to a Building Dispute or Strata Dispute seeks our advice, we ask for a brief note of factual matters so that an initial conference can be arranged to discuss the facts and issues that are likely to arise.
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Evidence by Experts – New NCAT Procedural Direction Applies from 11 September 2024 includes Claims under the Home Building Act in excess of $30,000. What evidence is required?

09/10/2024

At Watson & Watson, Richard Watson has dealt with hundreds of cases requiring Experts in many fields of expertise. Expert evidence can only be provided by the appropriately qualified and experienced Expert. We refer to for example, our article relating to the case of Makita (Australia) Pty Limited v Sprowles [2001] 52 NSWR708.
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Was the Builder’s case properly prepared and presented? Builder losses in excess of $560,000 of a reduced claim by the Builder of approximately $575,000 at NCAT. Appropriate Evidence required.

03/09/2024

Watson & Watson Lawyers have years of extensive experience in commercial litigation in particular, in relation to building and construction and strata disputes and advice. We refer to our article 20 March 2020 following a Decision of His Honour Justice Fagan who allowed an Appeal by Ms Paraiso, which was an appeal against NCAT Appeal Panel’s refusal to allow an Appeal against a Senior Member’s Decision. We refer to the Decision in Paraiso v CBS Build Pty Limited [2020] NSWSC 190.
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Building Disputes – It is Critical to Consider Various Time Limits for bringing Claims and which is the proper Court or Tribunal in which to bring the Claims. One Project can have different claims some of which NCAT may not have jurisdiction to hear and determine

08/08/2024

Care required Watson & Watson act on behalf of and advise many Homeowners and many Builders in relation to various claims relating to building disputes. When there is a dispute between a Builder and Owner there is most often, disputes about numerous different aspects of the relationship and contractual issues.
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Recent Case – No Liability of a Builder who was engaged to complete residential building work of another Builder, evidence and knowledge of the law critical

12/07/2024

The Civil and Administrative Tribunal of New Wales Appeal Panel (NCAT Appeal Panel) in a recent Decision June 2024 has allowed an Appeal from the Decision by the original Tribunal in particular, in relation to a primary issue in the case namely, whether the second Builder was liable for damages where consequential loss arose from water penetration through windows that had been installed at the residential dwelling.
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Changes in the Security of Payment Act which applies to residential building pursuant to Contracts after 28 February 2021 – urgent response required by Owners to all claims to avoid default position that the Owner must pay the claim notwithstanding its validity

10/07/2024

A Builder of residential building work for a person who resides in or intends to reside in the home, is entitled to make a claim under the Building and Construction Industry Security of Payment Act (SOP Act) in relation to Contracts that were entered into after 28 February 2021. This gives the Builder a very significant right.
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Can an Owner/Principal deduct an amount for delay damages or agreed Liquidated damages from an amount claimed by the Contractor or an amount certified by a Superintendent appointed under the Contract as payable by the Owner/Principal?

11/04/2024

Building Contracts most often (but not always) provide an agreement that the Contract Sum for the agreed Scope of Work will be paid by Progress Payments based on Progress Claims. The payments are usually to be on account of the price payable under the Contract. In many standard form Contracts the provision is by way of Progress Claims when the works reach each agreed stage which is listed in a Schedule to the Contract.
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Is the Owner who undertakes residential building work under the Home Building Act without an Owner-Builder Permit liable for damages for breach for various statutory warranties provided for under the Home Building Act?

12/03/2024

Watson & Watson have extensive experience in the area of Building and Construction having been engaged by Owners, Developers, Builders, Sub-Contractors, Consultants and others engaged in the building industry in particular, in relation to the building of residential buildings including high-rise buildings over a period of many years.
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Home Building Act provides obligations on Builders to undertake residential building work in accordance with the Statutory Warranties. A breach of the Warranties gives rights to the party who has the benefit of those Warranties to claim damages and losses resulting from a breach of the warranty

12/02/2024

Watson & Watson are highly experienced Lawyers having acted on behalf of Home Owners, Builders and Developers for many years in relation to building issues that arise on a regular basis during the construction process including claims relating to defective or incomplete works including claims for losses resulting from breaches of Statutory Warranties under the Home Building Act.
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Critical Dates for Commencing of Proceedings for losses and damages for breach of Statutory Warranties provided for under the Home Building Act. When does the Statutory Period commence?

06/02/2024

Watson & Watson are highly experienced Lawyers having acted on behalf of Builders, Home Owners and Developers for many years. This includes all building issues many of which arise on a regular basis before, during or after the construction process. This article relates to building and construction agreements, Builders, Home Owners and Developers undertaking works and disputes that arise and includes matters that many of our clients were not aware of at the time they contacted us.
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A Possible Claim where there is no Payment Schedule in response to a Payment Claim under the Security of Payment Act 1999 – Possible Summary Judgment where no defence to the Claim

29/12/2023

In the Building and Construction Industry Security of Payment Act 1999 (“SOP Act”), there are several circumstances under which the Claimant may seek a Court Order to recover money owed by the Respondent.
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Payment Claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – Builder’s Options if No Payment Schedule disputing the Claim provided by Homeowner – Homeowners Beware

23/11/2023

Watson & Watson for many years have been engaged in relation to building and construction matters, strata title issues and easements, orders and other similar issues and have acted for Contractors, Principals, Builders, Owners and Subcontractors in relation to claims under the Building and Construction Industry Security of Payment Act (SOP Act).
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Can misleading or deceptive conduct under the Australian Consumer Law be raised as a defence to a Payment Claim under to Building and Construction Industry Security of Payment Act 1999 (NSW)

22/11/2023

Watson & Watson have been engaged in relation to commercial disputes including building and construction and strata title issues for many years.
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Settlement of a Dispute – Documentation of Settlement Critical as to Ultimate Outcomes – Experience Counts

25/10/2023

At Watson & Watson we have been involved in more than a thousand disputes between various parties most of which have settled.
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Neighbour’s trees obstructing sunlight views or likely to cause damage to property or injury to any person

16/10/2023

For many many years there have been neighbouring disputes however it appears that over the recent years neighbouring disputes have to a degree, escalated.
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Residential Building Owners Risk Adjudication Determination against them if not prepared to respond to Payment Claim and Adjudication Application under the Building and Construction Industry Security of Payment Act 1999 (NSW) – A recent example

27/09/2023

Watson & Watson have for many years advised in relation to building and construction disputes including disputes under the Building and Construction Industry Security of Payment Act (SOP Act). As indicated in previous articles, the Security of Payment Act is an Act that initially was introduced in particular, to enable Sub-Contractors to be paid by Contract for building work undertaken for Builders and also for Builders to make a claim against Owners for whom building work had been undertaken. There were exemptions including an exception in that the SOP Act did not apply to claims by the Residential Builder undertaking residential building work for an Owner who either lived or intended to live in the residential building being constructed. This has all changed since 2021.
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Owners and Builders be Prepared for Claims under the Building and Construction Industry Security of Payment Act – Recent Cases indicate Consequences

21/09/2023

We refer to our previous article published relating to the general process under the Building and Construction Industry Security of Payment Act which is now applicable to Owners of residential building work which has been undertaken pursuant to a Contract on or after 1 March 2021.
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Home Owners Beware of Builder’s extended rights in relation to residential building works undertaken subject to Contracts that were entered into after 28 February 2021

28/08/2023

– Possible severe consequences – Protect yourself. Builders who have entered into Contracts after 28 February 2021 to undertake residential building works for Owners, have the benefit of the Building and Construction Security of Payment Act.
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Access to Neighbouring Land Act 2000 - Owners Request for Access to Neighbouring Land to undertake works - some recent matters

09/08/2023

For many years we have been involved in Applications by an Owner of land for access to the Neighbour’s land to carry out work on the Owner’s land.
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What Deposit or Money on Account of Work to be Undertaken is Claimable – Residential Building Work – Home Building Act

27/06/2023

Watson & Watson have been engaged by Owners, Developers, Builders, Sub-Contractors, Consultants and others engaged in the building industry in particular, in relation to the building of residential buildings including high-rise buildings in particular, buildings subject to strata for sale to individual owners.
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The Design and Building Practitioners Act 2020 – The Importance of Pleadings when making a Claim

15/06/2023

The Design and Building Practitioners Act 2020 (“DBPA”) is the New South Wales Government’s response to issues that arise in building and construction in particular, relating to high rise residential buildings subject to a Strata Scheme. The High Court of Australia in the case of Brookfield Multiplex Limited v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 (“Brookfield Case”), found in those proceedings, that Builders and Engineers did not owe a common law duty of care to subsequent Purchasers in relation to commercial property until DBPA in 2020. Similar restrictions applied in relation to high rise residential strata buildings.
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NSW Civil and Administrative Tribunal (NCAT) - Limits to NCAT’s Jurisdiction including Section_232 of Strata Schemes Management Act

02/06/2023

Since our previous articles in relation to jurisdiction of NCAT, there have been numerous cases which considered the extent of the jurisdiction of NCAT which have clarified to an extent, the Tribunal’s jurisdiction.
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What is the Effect and Consequence of the Builder’s Failure to Comply with the Contractual Mechanisms? Is the Builder’s claim always doomed to fail – Owners and Builder’s Be Aware!

18/05/2023

In the case of Renbar Constructions Pty Limited v Sader, Sader v Renbar Constructions Pty Limited in 2022 the Supreme Court of New South Wales considered the position where the Owner and Builder entered into a Contract whereby the Builder would demolish an existing structure and construct a new residence.
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Building and Construction Industry Security of Payment Act 1999 now applies to Contracts for Residential Building Work which were entered into after 1 March 2021 - Owners beware, these changes that can adversely affect you

08/05/2023

Since 1999 the Building and Construction Industry Security of Payment Act 1999 has applied in New South Wales and similar Acts apply in other States and Territories which allows a person who undertakes building work to recover from the person for whom the work is undertaken, moneys for the work undertaken pursuant to the Contract or an “arrangement” to carry out the building works.
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Claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – General Process relating to Claims in particular relating to the Adjudication Process – Knowledge and Preparation is Critical

04/05/2023

There have been numerous changes to the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Security of Payment Act”). The purpose of the Security of Payment Act is to enable a person to claim under the Act for moneys owing for building work undertaken.
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Are Contracted Rates for Liquidated Damages Specified in a Contract Enforceable in relation to Residential Building Work?

14/04/2023

Watson & Watson act on behalf of many Owners, Sub-Contracts, Builders and associated professionals involved in the construction of residential building works. Such works are to be undertaken in accordance with the Statutory Warranties provided for in the Home Building Act 1989 (“HB Act”) which is set out in Section 18B of the HB Act.
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What are the consequences of a Builder failing to complete Residential Building Works within a reasonable time; Claimable Damages?

24/01/2023

Watson and Watson Lawyers are experienced in Building and Construction matters including Contracts and disputes relating to construction of residual buildings as defined in the Home Building Act 1989 (“HB Act”).
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Home Owner Successfully defends a Builder’s Payment Claim under Building and Construction Industry Security of Payment Act 1999 (NSW)

13/01/2023

In November 2022 Watson & Watson received instructions from an Owner of a residential property in one of the southern suburbs of Sydney.
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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.
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Current Difficulties for Builders to Comply with their Obligations for the Construction of Homes – Affects both the Builder and Owner

26/08/2022

Watson & Watson Lawyers have for many years acted for those parties involved in the building and construction industry. We have advised Principals, Home Owners, Builders, Subcontractors, Consultants, Designers and Certifiers in relation to major projects including residential building works regulated by the Home Building Act. This includes new homes and renovations for Home Owners.
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Is it appropriate for the Owner to Terminate the Building Contract?

23/08/2022

Watson & Watson Lawyers have acted on behalf of Owners and Builders in relation to Contracts and disputes concerning the construction or renovation of the Owner’s home or residential building works over many years. Most often the arrangements with the Builder is in writing (as required by the Home Building Act), signed by the parties. Most often the Contract is a standard form Contract some with Special Conditions or amendments to the standard form Contract. As referred to in other articles on our Website, there are often some issues of concern in relation to amendments to Contracts in particular, whether the Owner should accept the terms of a Contract produced by the Builder without consideration of the terms of that Contract.
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Can the Builder Enforce the Builder’s Contract for Progress Payments?

16/08/2022

We have acted on behalf of Builders, Owners and others involved in the building industry in relation to their legal matters including disputes for many years including disputes relating to residential building works as referred to in the Home Building Act (HB Act). These include major projects and also many contractual matters and disputes between Builders and Home Owners who are building or renovating their home.
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Design and Building Practitioners Act 2020 (NSW) - Construction Work the Subject of the Act – Owner to whom the Duty is Owed

04/07/2022

The various Acts that apply in relation to claims by Owners and Subsequent Owners for damages for alleged defects include but are not limited to the following:
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Review of Design and Building Practitioners Act 2020 Part 2 (Sections 36 to 41) Designers and Builders have further Duty of Care to avoid economic loss to Owners

08/06/2022

The Design and Building Practitioners Act 2020 (“DBP Act”) commenced in 2020 and further Sections commenced as from 1 July 2021. We have referred to these briefly in our Articles 29 July 2020 and 30 May 2022.
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Design and Building Practitioners Act 2020 – Additional Provisions Commenced 1 July 2021

02/06/2022

We refer to our preliminary Article 29 July 2020 in relation to the Design and Building Practitioners Act 2020 (“DBP Act”) as from 1 July 2020 further particular requirements have commenced.
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Builder’s Claim for Delay Damages under Building and Construction Industry Security of Payment Act 1999 - Defeated

07/03/2022

Recently Watson & Watson Lawyers acted for a property owner who entered into a Building Contract for completion of the building of two properties following termination of a Contract with the original Builder.
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Owners’ Difficulties in Obtaining Required Certificates to Complete Work and to Occupy – Negotiate before Contract, if possible

21/01/2022

In our extensive experience one of the greatest difficulties faced by an Owner and sometimes faced by a Head Contractor (in relation to works undertaken by Subcontractor) is to obtain the necessary Certificates which are required for the eventual approval of the works and the occupation of the completed works.
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Home Building Compensation Fund (HBCF) – Home Owner Saves $thousands

15/11/2021

Watson & Watson Lawyers have for many years acted on behalf of Home Owners, Builders, Subcontractors and Building Professionals in relation to many claims relating to residential building work.
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Important case in relation to Statutory Warranties – Conflict between terms of Contract, DA and Statutory Warranties - Successful Appeal – Builder in Breach of Statutory Warranties

09/11/2021

Following the Decision by the Civil and Administrative Tribunal (NCAT) in October 2020, we received instructions to provide advice as to the prospects of an Appeal on behalf of the Owner. The Owner had previously engaged other Lawyers to act on her behalf in relation to a dispute with the Builder.
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Builders Warranty Insurance – Home Owner Making a Claim Effect of the Builder Failing to Pay an Amount Ordered by a Court or NCAT

02/11/2021

Watson & Watson act on behalf of many Owners or Owner/Builders in relation to their rights and obligations under the Home Building Act 1989 (NSW).
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Building Claim with Complications

30/09/2021

In late 2018 Watson & Watson Lawyers received instructions to act on behalf of the Builder who had just received an Application by the Owner issued out of the NSW Civil and Administrative Tribunal (“NCAT”).
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Owners Beware - Building and Construction Industry Security of Payment Act 1999 (NSW) - Now expanded and applies to Building Contracts for Home Owners who intend to occupy the home once completed

25/08/2021

From 1 March 2021 the law has changed and the Building and Construction Industry Security of Payment Act 1999 (“Security of Payment Act” or “SOP Act”) now applies to enable a Builder to claim payment against a Home Owner who is building a home to occupy pursuant to the provisions of the Security of Payment Act. This is additional to the existing construction work to which the Security of Payment Act applies.
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Occupation Certificate - Early Advice Critical Preferable before you sign Contract with Builder

11/08/2021

An Occupation Certificate is required for: (a) The commencement of the occupation or use of the whole or any part of a new building (be it a residential or commercial building/property). (b) The commencement of a change of building use for the whole or any part of an existing building.
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Easements – Court Order in your favour is not necessarily a Victory however a Court Order against you is worse – Settlement preferred if possible

12/07/2021

The person seeking the Easement usually believes that it is their right to obtain an Easement. This is not always the case. However in various circumstances, the Court will order that the neighbour/s grant the Easement.
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Homeowner successful in claim against Builder for Breach of Statutory Warranties despite claim by Builder to have a Defence to the claim under Section 18F of the Home Building Act

05/07/2021

We received instructions to act on behalf of the Owners of a luxury multi-storey residential property. The Owners engaged an Architect to design a luxury home. This included engaging with consultants including for example, Engineers. Thereafter the Owners obtained Development Consent.
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Easements – A Court Order in your favour is not necessarily a victory however a Court Order against you is worse

26/04/2021

All parties benefit from an early resolution. Watson & Watson Lawyers have recently been involved in numerous Easement issues and two of which are referred to below.
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Statutory Warranty Period – building has defects –Home Building Act Time Limits – Some recent cases

12/04/2021

After the changes that were made to the Home Building Act 1989 in 2015 “structural and non-structural defects” were replaced with “major defects” and “non-major defects”. The Home Building Act 1989 (HBA) thereafter provided for a 6 year warranty period for major defects and a 2 year warranty period for any other non-major defects for residential home Owners to bring a defects claim
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Builder’s Defence to Owner’s Claim that the Builder Breached the Statutory Warranties – Section 18F of the Home Building Act rarely used and rarely successful

05/04/2021

The Home Building Act 1989 (“Home Building Act”) (HBA) sets out in Section 18B warranties (Statutory Warranties) as to residential building work which are implied in every Contract pertaining to residential building work.
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Application for Payment by Instalments – NCAT Orders – What is the Value of Builder’s Licence?

30/03/2021

If you have an Order from NCAT in your favour you need to consider your options to best achieve your desired outcome which almost always, is to receive payment of the outstanding money due to you.
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Building and Construction Industry Security of Payment Act – The Effect of Section 34 on Various Agreements

23/03/2021

Section 34 of the Building and Construction Industry Security of Payment Act (SOP Act) states:
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Terminating a Building Contract - Care Required

27/01/2021

When the relationship breaks down between the Builder and the Owner often the Owner wishes to terminate the Building Contract.
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Building and Construction Industry Security of Payment Act 1999 (NSW) – Right of Party to the Contract to proceed under Section 22 of the SOP Act to commence and prosecute proceedings seeking to enforce contractual rights notwithstanding that the party has not paid amount due under adverse Adjudication Determination

20/01/2021

In a recent case of Lindvest DM Pty Limited v CPDM Pty Limited [2020] NSWSC 1290 Justice Stevenson in the Supreme Court of New South Wales considered the matter.
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Can a Builder Return to Site to Undertake Rectification of Defective Work rather than pay Money to cover the Cost of Rectification by Others? Court and NCAT’s obligations under Section 48MA of the Home Building Act

14/12/2020

Watson & Watson act on behalf of many Owners and many Builders in relation to disputes as to defective work undertaken by a Builder in construction of a residential property. Claims up to $500,000 are generally dealt by NSW Civil and Administrative Tribunal (NCAT). There are hundreds of cases before NCAT dealing with the issue and possible claims by a Home Owner against a Builder for Orders relating to defective work.
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What are the relevant issues in relation to Easements?

07/12/2020

The relevant issues in relation to Easements include: What are the terms of the proposed Easement including the parties’ rights and obligations? Whether the Easement is reasonably necessary for effective development of the land. Whether the Easement is not inconsistent with public interest. What are the alternative proposals to the Easement which is the most appropriate Easement? What is the appropriate compensation to be paid? Who pays the legal and other costs of the parties? Whether all reasonable attempts have been made by the Plaintiff to obtain the Easement requested.
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NSW Civil and Administrative Tribunal (NCAT) Refusal to Grant Adjournment – Appeal Allowed by Supreme Court on basis of denial of procedural fairness

30/11/2020

In the case of Hanson v Metricon Homes Pty Limited [2020] NSWSC 401 the Supreme Court has considered various obligations of Tribunal Members including failure to allow adjournments. One of the general principles is Section 36 of the Civil and Administrative Tribunal Act (NCAT Act) which provides in essence, guiding principles that proceedings in the Tribunal are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
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Who pays the Costs of NCAT Proceedings?

11/11/2020

Often if the matter cannot be resolved one or other of the parties commences proceedings in the NSW Civil and Administrative Tribunal (NCAT) and seeks various orders in their favour.
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NCAT Appeal Panel confirms that Contracts and Variations must be in writing and signed to be enforceable – Appeal also allowed on basis Tribunal rejected some evidence

21/10/2020

In the recent case of Rice v JR & SD Farmer trading as TA Urban Bespoke Homes [2020] NSW CATAP 208 allowed an Appeal against at Decision of NCAT at first instance. One of the main issues in this case related to the enforceability of variations undertaken during the process of building work in relation to residential building work.
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Application for Easement to drain water DA conditional on Easement being granted within 1 year of DA approval - Time is of the essence to act

24/09/2020

In late 2018 Watson & Watson received instructions to act on behalf of the Owner of land who received a DA approval in July 2018 for the construction of a home on land he purchased in 2014.
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Builder defeats Home Owner’s attempted Termination of Contract invalid. Builder successful in its claim for outstanding moneys due under the Contract and loss of profit

17/09/2020

Watson & Watson were instructed by the Builder in relation to a dispute between the Builder and the Home Owner resulting from residential building work pursuant to a Contract. Each of the Builder and the Home Owner commenced proceedings in the New South Civil and Administrative Tribunal (NCAT).
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Home Owners successful in Claim in excess of $300,000 denied by the Builder – Cross Examination of Experts critical to Outcome

08/09/2020

Watson & Watson acted on behalf of the Owners of a home which had been purchased from the previous Owner in 2012. In this matter the Tribunal ordered: That the Builder pay to the Owners in excess of $300,000; and That the Builder pay the Owners’ costs of and incidental to the proceedings on an ordinary basis as agreed or assessed.
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Home Owners successful in Claim denied by the Builder, Breach of Statutory Warranty – Builder’s Defence denied

02/09/2020

Watson & Watson received instructions to act on behalf of the Owners of a home who engaged a Builder to undertake building works for a large new residence in a prestige area of Sydney.
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Claims for Variations under the Building and Construction Security of Payment Act 1999 - Where claimed payments are purported to arise pursuant to the Contract, the proper manner to challenge these will be through a Payment Schedule and Adjudication process and not on Appeal

11/08/2020

The NSW Court of Appeal recently handed down its unanimous Decision in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd. The case dealt with a few key issues relating to the validity of Payment Claims issued under the Building and Construction Security of Payment Act 1999 (SOP Act).
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Why take a chance with the method of service or lodgement of a Payment Claim, Payment Schedule, Adjudication Application, or Adjudication Response under the Building and Construction Industry Security of Payment Act 1999 (NSW)?

05/08/2020

In litigation, it is important to not expose your clients to risks that can be easily avoided and to not fight battles that do not need to be fought. Litigation is costly and risky enough.
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Design and Building Practitioners Act 2020 - Provides a further basis of claim for an Owner (or subsequent Owners) of land in relation to construction work – Time Limits Apply

29/07/2020

The Design and Building Practitioners Act 2020 became law in 2020 and extends the duty of care of various specific persons relating to the carrying out of construction work, namely a duty to avoid economic loss by defects in or related to a building which work arising from the construction work.
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Judgment for progress claim under the Building & Construction Industry Security of Payment Act - Can it be stayed pending Appeal or Application under Section 32 of the SOP Act?

02/07/2020

On 19 June 2019 the New South Wales Court of Appeal considered the requirements for obtaining a stay of execution of a Judgment Debt arising under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“The SOP Act”).
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Judgment for progress claim under the Building & Construction Industry Security of Payment Act - Can it be stayed pending Appeal or Application under Section 32 of the SOP Act?

02/07/2020

On 19 June 2019 the New South Wales Court of Appeal considered the requirements for obtaining a stay of execution of a Judgment Debt arising under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“The SOP Act”).
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Only some Home Building Claims do not need to be referred to Fair Trading before commencing in the Tribunal – Exceptions to the Rule requiring Mediation before commencing proceedings

24/06/2020

With few exceptions, the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to hear and determine any building claim brought before it under part 3A of the Home Building Act 1989 (HB Act) where the amount claimed does not exceed $500,000.
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Termination of Building Contract – Extreme Caution Required

17/06/2020

Watson & Watson have acted for the Builder and in other cases, for the Owner in relation to issues, rights and the effect of a termination of a Building Contract. There is also a separate issue as to the whether the Builder can suspend the works. The issue usually arises when works are significantly progressed but not completed and the relationship breaks down between the parties to the Building Contract. If the Builder suspends the works, the Owner is in a very difficult situation as the works have stopped and the Owner is not able to bring the works to completion without bringing the works out of suspension.
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What is the effect of failure of Adjudicator to comply strictly with time limits in the Building and Construction Industry Security of Payment Act 1999 (NSW) in issuing a Determination?

19/05/2020

Watson & Watson Lawyers currently act for many Owners, Builders or Subcontractors who are either serving or and receiving Payment Claims and some of the matters are proceeding to an Adjudication Application and Determination.
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Building and Construction Industry Security of Payment Act 1999 - Only one Payment Claim can be made for each month, unless the Contract provides differently

28/04/2020

One trap for Contractors issuing multiple invoices that are styled as Payment Claims under the Act is issuing more than one per month, where the construction Contract in question does not permit more frequent Payment Claims.
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Easements under section 88K of the Conveyancing Act 1919 (NSW) and how Compensation is Assessed

21/04/2020

As we have considered in another article, when one landowner applies for an Easement over a neighbour's property, it is:
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NOTICE ALERT IN LIGHT OF COVID-19 FOR BUILDING AND CONSTRUCTION MATTERS

06/04/2020

Beware: Strict time limits under the Building and Construction Industry Security of Payment Act 1999 (NSW) continue to apply notwithstanding the havoc wrought to all financial areas by the virus.
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Easements under section 88K of the Conveyancing Act 1919 (NSW) and the position in relation to the legal and costs payable by the person seeking the Easement

23/03/2020

When one landowner seeks an Easement over a neighbour's property if the matter cannot be resolved, the person seeking the Easement can approach the Court, usually the Supreme Court of New South Wales to seek an Easement over the neighbour’s land for a specific purpose for example, to drain water (stormwater easement).
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Home Building Act requires Variations to the Works to be in writing and signed by or on behalf of each party to the Contract – Supreme Court in recent case sets out requirements in this regard

20/03/2020

Following a Decision of a Senior Member of the New South Wales Civil and Administrative Tribunal (NCAT) in the case of Paraiso and CBS Build Pty Limited, we received instructions to act on behalf of the Owner, Ms Paraiso to consider the decision of the Senior Member at first instance.
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Limitations to Claim based on Quantum Meruit following recent High Court Case

17/03/2020

The recent case of Mann V Paterson Construction Pty Ltd [2019] HCA 32 has the effect of changing the law that applies to claims in Quantum Meruit in certain circumstances.
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Settling a dispute – Urgent advice and Court proceedings assisted early effective resolution

29/02/2020

We recently acted for a property Developer who had a dispute with a Builder. Within 11 days from our initial conference with our client, we were able to achieve resolution of the dispute, after commencing urgent Supreme Court of New South Wales Equity Division proceedings, involving a solicitor from our office appearing twice as advocate before the Duty Judge.
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Owner/Builder – Claims for Delay in Completion of Building Works

18/02/2020

Building Contracts usually specify a date for Practical Completion. Often the date for Practical Completion is a set period from the date of commencement of work as determined by reference to a Building Contract.
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Easements – Rights, Obligation and Effect

08/01/2020

There are many circumstances in which a land Owner would need an Easement from the Owner of adjacent land.
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Evidence in appropriate form is critical to win cases by settlement or in a contested hearing

10/12/2019

At Watson & Watson we have for many years acted for one party or another in litigation in all areas including commercial work, banking and finance, building and construction, strata and criminal in particular, white collar crime.
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Beware of the Limitation Periods – Building Claims

04/11/2019

The Home Building Act provides for claims against the Builder, Developer of Subcontractor in relation to residential building work in particular circumstances. However there are time limits in which claims must be notified and separately, time limits in which to commence proceedings.
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Appealing against the Decision of NCAT to NCAT Appeal Panel, District Court or Supreme Court.

04/09/2019

The NSW Civil and Administrative Tribunal (“NCAT”) has jurisdiction and functions as may be confirmed by the NSW Civil and Administrative Tribunal Act (the NCAT Act). The jurisdiction of NCAT is wide and varied. However one needs to find the authority for NCAT to deal with the matter in a particular Act.
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Can an Owner obtain an extension of time to complete conditions imposed by Council?

26/06/2019

It is not unusual for a Municipal or Local Council to stipulate conditions as part of its Consent to a Development Application, such as the Consent is deferred and does not start to operate until the Applicant has satisfied certain conditions.
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Can NCAT hear a claim against a Guarantor in a building claim?

11/06/2019

The HIA standard form Building Contract for residential dwelling construction work contains a separate Deed of Guarantee. The Deed of Guarantee is often utilised in a situation where the property is owned by a company and the company is contracting with the Builder for the construction work. A director of the company may be expected to provide a guarantee on behalf of the owner company.
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Triggering Events for a Claim on the Home Building Compensation Fund (HBCF) Policy

05/06/2019

Usually (but not always) a Builder is required to provide a Home Building Compensation Fund Policy in relation to home building work. Such a policy covers the home owner and others (as set out in the Home Building Act) in relation to various claims and in particular in relation to: 1. Cost of rectification of defective work; and 2. A contribution to costs to complete incomplete building works.
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Recent changes to the Building Security of Payments Legislation – Restrictions on Company in Liquidation

02/04/2019

In New South Wales, there is a system for Contractors (and Sub-Contractors) in building projects to recover moneys owed to them “quickly”. This system has been put in place under the Building and Construction Industry Security of Payments Act (SOP Act). There are some exceptions in the SOP Act. This Act is a law of the NSW parliament.
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2018 Commonwealth regime relating to insolvent Builders or Owners – May restrict rights to Terminate

26/03/2019

This article relates to a situation that sometimes arises during a building project where one of the parties becomes insolvent. This insolvency may apply to a corporation or an individual and may apply to both the Builder and the Owner or principal in a project.
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Building and Construction Law - Defects case. What happens if you sue the Builder but he claims someone else was the Builder? – Question of Agency

19/03/2019

In NSW a person who enters into a House Building Contract with a Builder can in certain circumstances, sue that Builder if the house has building defects. In those circumstances, the Owner must bring the case within a certain time frame, which is the Limitation Period.
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Duty of Certifiers of Building Work - A New Angle

06/03/2019

In New South Wales there is a system by which building professionals “check” that new residential buildings and major renovations have been built to the appropriate standards. This system of certification, which involves the issue of construction certificates and occupation certificates, was at one stage exclusively managed by local authorities.
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The Opal Tower case: Claim by Builder for payment - Update on recovery under the Security of Payments legislation

25/01/2019

The Opal Tower building at Australia Avenue at Sydney Olympic Park has recently been in the news. Various people noticed cracking in this multi-storey apartment building in January 2019. After investigation all of the residents left the building and after many weeks have not returned. It is not known when the extent and nature of the defects in the building will be ascertained and how and when the building will be repaired.
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Building and Construction – How to obtain an Easement to drain Water

16/01/2019

When a land owner wants to construct a building, the relevant planning authority will require the owner to have a plan to drain stormwater from the building and the surrounding land. The authority, (usually the local council), will generally insert that requirement into the Development Consent to ensure that the proper drainage of stormwater will become a condition to be complied with prior to the final approval or the construction of the building.
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Building law - Who is a successor in title who may obtain rights for breach of Statutory Warranty under the Home Building Act?

09/01/2019

Under the NSW Home Building Act, a person who is a party to a residential building contract with a Builder has certain rights. Implied into such Building Contracts is the statutory warranties provided for under Section 18B of the Home Building Act. We have provided further information in relation to these warranties in our article dated 2 February 2018.
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Occupation Certificates – are critical – protect yourself

07/12/2018

When a person in NSW wants to build a house, townhouse or block of apartments, that person must seek approval to undertake the building works from the local certifying authority. That certifying authority is generally the local council or municipal body. The person seeks this approval by lodging a Development Application with the local council or municipal body. In some circumstances the approval can be granted by a private certifier.
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Valuations different basis of value for different purposes – Expert Valuer required

06/11/2018

Watson & Watson have been involved in many issues where valuations of real estate were required to enable a party to receive “compensation” based on the valuation. In the past 18 month we have given advice and engaged valuers in relation to matters concerning the following issues.
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Gaps in coverage by the Home Building Act for “As If” contracts

28/09/2018

The NSW Home Building Act, 1989 is a piece of legislation designed to protect Home Owners from defective building works. When parliament passed the legislation into law it recognised that Owners were at a disadvantage when dealing with Builders.
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Home Building Act Statutory Warranties Update – Developer and Builder Responsible for design defects Court of Appeal Decision

11/09/2018

In August 2018 The Owners – Strata Plan 66375 v King the NSW Court of Appeal made findings and decisions in relation to the obligations of the Developer and the Builder under the statutory warranty regime under the Home Building Act.
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Building Security for Payment Appeals – Security of Payments

21/05/2018

The High Court of Australia has recently affirmed that there are only limited opportunities for appeals against security of payment determinations by adjudicators.
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Expert Evidence – Critical to good outcome in Building Matters

23/04/2018

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).
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Expert Evidence – Recent change NCAT Procedural Directions February 2018 – Rules Relaxed

19/04/2018

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.
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Builders Warranty Insurance – Home Owners Warranty Insurance making a Claim - Residential Building in NSW

09/04/2018

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.
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Can an Owner Always Claim for Costs of Rectification or Defective or Incomplete Work?

07/03/2018

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).
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Home Building - Remedies for Defective Work – Rectification Order – NCAT preferred Option

05/03/2018

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.
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Residential Building Disputes – Consider all Alternatives

21/02/2018

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.
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Civil and Administrative Tribunal (NCAT) – Who pays the costs?

09/02/2018

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.
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Sub-Contractors Statements – Does the Principal Contractor have a right to withhold payment to a Sub-Contractor who fails to provide a Sub-Contractor’s Statement. What are the consequences?

05/02/2018

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.
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Statutory Warranties under Home Building Act – Liabilities of Builder, Sub-Contractor and Developers

01/02/2018

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.
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Builder without complying Building Contract may recover the value of building work – Quantum Meruit Claim

03/01/2018

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.
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Home Building Contracts – Renovating or New Homes – Protect Yourself - A Stitch in Time Saves Nine

17/11/2017

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.
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Occupation Certificate required by Owner to have benefit of New Works – How will you obtain an Occupation Certificate? Best Alternatives – Owners protect yourself before entering into a Building Contract

15/10/2017

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.
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Building and Construction Security of Payment Act – Enforcement of Adjudication Determination by Garnishee - Obligation on a Claimant?

21/09/2017

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.
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Building Certifier Not Liable – Appeal allowed in favour of the Building Certifier

18/09/2017

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.
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Security for Costs – Application by Defendant at earliest possible time

20/07/2017

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.
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Recent High Court decision underlines need for care in conducting Security of Payments claims – Reference Date provision

30/06/2017

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.
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Court of Appeal decision relating to claim to extend operation of Building and Construction Industry Security of Payment Act 1999

29/05/2017

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.
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NSW Supreme Court confirms need for properly prepared Building Experts Reports – Substantial claim lost due to unacceptable Expert Evidence

11/05/2017

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.
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Liability of Certifiers for defective building - Certifier appeal decision of Supreme Court

28/03/2017

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.
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Are you affected by the collapse of Huxley Homes?

01/11/2016

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.
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New Law Governing Unfair Contract terms relating to Builders between Businesses and Small Businesses

20/04/2016

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

06/04/2016

Building Licences in New South Wales are issued by the New South Wales Government.
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Applying for a Building Licence – Issues to Check

31/03/2016

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.
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Watson & Watson Building & Construction Client Matters as of December 2015

16/12/2015

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.
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Expert Determination - When May They Be Impugned?

11/03/2010

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.
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Dividing Fences

01/03/2010

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.
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Housing - eCircular

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.