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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.

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.

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.

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.

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.

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

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.

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.

Section 34 of the Building and Construction Industry Security of Payment Act (SOP Act) states:

When the relationship breaks down between the Builder and the Owner often the Owner wishes to terminate the Building Contract.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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).

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.

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.

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”).

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”).

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.

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.

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.

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.

As we have considered in another article, when one landowner applies for an Easement over a neighbour's property, it is:

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.

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).

Following a Decision on 14 March 2020 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.

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.

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.

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.

There are many circumstances in which a land Owner would need an Easement from the Owner of adjacent land.

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.

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.

Watson & Watson received instructions from the Owner of a property: Briefly: The Owner and Builder entered into the Building Contract for a Contract Sum of approximately $1,500,000 for a renovation and construction of a significant residence.

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.

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.

It is a common perception that if a party prefaces any communication with the words ‘without prejudice’, he or she would be able to state any matter with impunity as such communication cannot used to his or her detriment by the other party.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Generally an Expert is required when one needs to draw a conclusion or an opinion from a factual situation; this seems simple but in practice is difficult. The appropriate Expert is one with the detailed experience and appropriate training in his/her field of expertise.

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.

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.

In 2016 Watson & Watson received instructions from an Owner of a property in a new subdivision in western Sydney. The property had been constructed in 2010 and 2011 and a Final Occupation Certificate was issued in February 2012.

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.

Watson & Watson acted on behalf of an owner who held an owner builder permit. The owner engaged a Builder to carry out the residential building work.

There is an industry of Builders who undertake emergency work; for example after a storm causing damage to property either by direct contact or through flood. There are numerous building companies who undertake this work for owners or insurers. The Head Contractors often subcontract part of the works to subcontractors to undertake part of the works.

In early 2018 Watson & Watson received instructions from a home builder who had been served with an Application by the owner commenced in the NSW Civil and Administrative Tribunal (NCAT).

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.

The obligations and rights relating to renovation of Units are regulated by the Strata Schemes Management Act 2015 (“SSM Act 2015”). Work to renovate a Unit for example, a bathroom or kitchen often but no always, involves work to the common property.

Watson & Watson acted for the Lot Owner of a commercial Lot (shop) on the ground floor of a high rise building.

In a case of Davenport and Owners Strata Plan decided in 2018 by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (NCAT) considered issues that arose as to a balcony which formed part of the building located at the site at the time of the hearing. The balcony was only accessible to one of the lots.

Many people live in buildings which are subject to Strata Schemes. Those buildings consist of varying sizes from a two Lot strata scheme to townhouses in a Strata Scheme and small and large apartment complexes. Various Owners own a Lot within the Strata Scheme. The Lot is defined by reference to the Strata Plan and the laws applying to Strata Schemes. All parts which are not part of the Lot are common property owned by the Owners Corporation. The Owners Corporation consist of all the Lot owners.

For many years there have been strata laws which will allow buildings to be subdivided so that within the same building separate lots can be separately owned. A strata complex consists of various lots which are specified on a Strata Plan. There is also common property which is property which does not form part of any particular lot. There are many disputes in relation to what is common property and what other rights and obligations of each lot owner and also the Owners Corporation.

Watson & Watson were approached by the Owners of an apartment in a Harbour front Strata Apartment Complex consisting of six units. There is one unit on each floor and each unit faces the Harbour.

Often we receive enquiries from Lot Owners where it appears that the Owners Corporation are taking a very hard line against a particular Lot Owner which is inconsistent with the approach adopted by the Owners Corporation generally throughout the strata building.

Our advice to clients last year to avoid commencing damages claims in the Tribunal for breach of duty by Owners Corporations has been shown to be wise, with a further Decision of the Appeal Panel on 15 January 2020, following on from the Decision in October 2019 that we reported in our article published earlier this month.

In a decision late last year, a Senior Member of the Tribunal made orders declaring a by-law harsh, unconscionable and oppressive, and ordering the Owners Corporation to remove it from the date of registration. The by-law excluded pets, and had its application to “Angus”, a 13-year-old miniature schnauzer that the Owners of a Lot had acquired as a pet nine years before they bought into the scheme.

Recently we acted for a client, who owned a strata unit. The strata unit was located on the ground floor of a multi-story building and was leased to a commercial tenant. Early in the tenancy, water penetration occurred, due to the failure of the Owners Corporation to comply with its duty to maintain and repair the common property in the Strata Scheme.

Strata buildings are subject to the Strata Schemes Management Act 2015 (“SSM Act 2015”) and the Strata Schemes Development Act (“Development Act”).

The Civil and Administrative Tribunal (NCAT) is a Tribunal which deals with different types of applications, referred to it by various legislation. Cases which are brought before the Tribunal are subject to the provisions of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). As with most claims that are heard, there are time limits in which you can bring a claim. There are many statutes which specify limitation periods.

The general rule relating to disputes is that each party should be heard in relation to a dispute before any Orders are made. However where there is an urgent need for an Order against a person or entity in the absence of that person, a Court or Tribunal may have power to make such order.

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.

In 2016 the legislation in relation to Strata Schemes changed. At that time the new strata statute in NSW came into force, which was the Strata Schemes Management Act, 2016.

Imagine this situation. Some years after the apartments are built, you buy a well-presented strata apartment in Sydney and you commence to live in it. You enjoy the large outdoor space and the proximity to parks and the leafy outlook, plus the short ride to work in the city.

In New South Wales the Strata Schemes Management Act 2015 (SSMA 2015) sets out the framework for resolving strata disputes. It provides that parties to disputes can lodge applications to the NSW Civil and Administrative Tribunal (NCAT) to resolve those disputes.

On 30 November 2016 the new strata schemes regime came into operation in New South Wales. This was set out in the Strata Schemes Management Act, 2015.

Under the strata schemes legislation in New South Wales, the Owners Corporation can apply to the New South Wales Civil and Administrative Tribunal for Orders that a lot owner provides access so the Owners Corporation can carry out work.

It is often the case that developers build multi unit apartment blocks and then the purchasers discover that the building work is defective. The usual remedy that purchasers have to recover the cost of rectification of the defects is to sue the builder who carried out defective work.

The Strata Schemes Management Act 1996 was the NSW legislation which applied to Strata Schemes up until November 2015. That legislation under section 65A provided that if a lot owner wanted to add to or alter the common property, the lot owner could only do so if a Special Resolution had first been passed at a General Meeting of the Owners Corporation that authorised that work.

Often lot owners wish to change or renovate their units which generally involves some connection and changes to the common property.

The Strata Schemes Management Act 2015 (SSM Act 2015) has come into force which includes Part 7 which relates to by-laws. In essence the by-laws set out the rules applicable to the owners of various lots and the Owners Corporation and others in a Strata Scheme.

By-laws are fundamental to the operation, the rights and obligations of the Owners Corporation, lot owners, occupiers and others for the good management of the Strata building.

Sometimes by-laws are proposed and/or passed due to a difficult situation that arises. They can sometimes be proposed and/or passed without careful consideration of the overall and collateral effect.

The Strata Schemes Management Act 2015 (SSM Act 2015) has introduced a requirement that the Owners Corporation prepare and implement a plan of anticipated major expenses to be met from the Capital Works Fund for a period of 10 years.

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.

We recently acted for importers of vehicles and equipment from overseas in a number of proceedings in the NSW Civil and Administrative Tribunal (NCAT). Our client was deemed to be the manufacturer of the engineered powered machines (machines) in Australia for the purposes of the Australian Consumer Law, by reason of the fact that the overseas manufacturer did not have a presence in Australia.

The Federal Government has made important changes to legislation to provide temporary relief for financially distressed individuals and businesses, by way of amendments to the Bankruptcy Act 1996, the Bankruptcy Regulations 1996, and the Corporations Act 2001 and the Corporations Regulations 2001.

A recent decision of the Court of Appeal (Nagamuthu v Shanmugarajah [2019] highlights the importance of corroborative evidence in particular, where the oral testimony alone of a party is far from persuasive.

It is an all too familiar scenario: Two close friends pool their resources, knowledge and contacts to bring a business idea into reality. The business grows and the two entrepreneurs, each a shareholder and a director of the company have different ideas about where the company should be headed. Disagreements become more frequent over lost opportunities, tension turns into suspicion and before long, outright hostility.

Once a party has received Judgment in his or her favour there is no certainty that the Defendant will make payment. Often the Judgment needs to be enforced to receive payment.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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.

In many cases where undue influence is alleged, even if it is not fully made out, the facts might be sufficiently suspicious to cast on the person alleging the Will is valid, an onus to remove such suspicion by clear and affirmative proof of knowledge and approval by the Testator of the Will.