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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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.