“You wanna hear a construction joke? Sorry, I’m still working on it. ”
Building and construction law
Building and construction law related to the construction of buildings or structures on land in Australia. There are many standard contracts and other documents and legislation specifically applicable to this area of law, especially those which regulate building contracts, how building disputes are dealt with and the licencing of builders and those in associated trades.
A dispute often arises between a subcontractor and a defaulting contractor/ builder about work done by the subcontractor. A contractor/ builder will raise all kinds of reasons as to why the subcontractor shouldn’t get paid. In this situation a shortcut procedure is available to a subcontractor under the Contractors’ Debts Act 1997. In summary, the subcontractor, by following the procedure set out in the Contractors’ Debts Act 1997 can, after having obtained a debt certificate, serve a notice of claim on the principal requiring them to pay money owed to the defaulting contractor/ builder straight to the subcontractor instead. If you are a subcontractor owed money by a contractor/ builder looking to use these procedures to get paid as quickly as possible you should get assistance with this process as timing can be crucial and subcontractors have been unable to obtain assistance under the simplified procedures due to not serving the notice of claim at the appropriate time.
Common methods of dispute resolution in building and construction matters in NSW include:
- Litigation: which is where an aggrieved party seeks an outcome using the traditional court process
- NSW Civil and Administrative Tribunal: a tribunal with less formal rules than a traditional court has power to determine certain disputes such as domestic building disputes
- Alternative dispute resolution (ADR) methods: such as mediation which is where a neutral third party is used to help reach a mutually satisfactory agreement or expert determination where is where an expert is appointed by contract or agreement to make findings which are binding on the parties
- Arbitration: which is where parties present their case to a person (the arbitrator) who makes a binding decision
Allegations are often made about defective building works. The manner of resolution of a dispute about defective building work will depend on the nature and circumstances of the work. For example, in NSW statutory warranties exist under the Home Building Act 1989 and insurance under the Home Building Compensation fund may apply (residential work valued over $20,000 only) for defects in the construction of residential property, but in a commercial construction situation the terms of the contract and dealings between the parties play a much more important role in how the dispute will be resolved.
In NSW, legislation such as the Building and Construction Industry Security of Payment Act 1999 may apply to payments which are not made under a building contract. It is important that payment claims and payment schedules in response are served within the correct timeframes (as little as 10 days or less) so that rights to claim and object to claims are not lost.