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Disputes: Prevention is better than cure

Prevention is better than cure
Whilst Expert Reports are a large portion of Tyrrells business, we would prefer that our clients have a trouble-free building experience.

Background

Donna entered in to a contract with a builder in 2015. The value was around $450,000 for a detached 2 x storey villa & she finally moved in in late 2017, about 18 months longer than expected.

Donna didn't have an Occupation Certificate (OC) as an interim one had been issued. Donna really didn't think too much of it at the time as she was just happy to finally be moving in. The Builder had pretty much said 'see ya' when he'd finished, left her a pile of documents & said drop it off to the certifier.

The Certifier quickly picked up that the documents were incomplete - the builders license details were missing & none of it had been signed either. Unfortunately, the builder was entirely uncontactable for close to 12 months.

It wasn't until late 2018 when Donna threatened legal action, that the builder finally responded. She had contacted the Department of Fair Trading (DFT) as she felt like she had no other choice but it worked: 48hrs later, the builder had signed everything & 1 week later, Donna had her OC. It was now December 2018.

Donna had tried to raise the defects with the builder but her claims had fallen on deaf ears. Her main issues at the time were concerns with moisture penetration, walls out of plumb & the floor to her sons bedroom was on quite a lean...all to no acknowledgment or action.

The builder had also made her life a bit difficult having withheld things like keys for the sliding doors to the balcony which cost her quite a bit for a locksmith to change & the garage door fob. The builder had told Donna to contact the garage door supplier however they wouldn't hand them over as the system & doors were in the builders name

Some building disagreements which might appear to be manageable to an expert, ie an independent building consultant from Tyrrells, can be most distressing to a home owner and builder and can consume the lives of normally reasonable people. If a building dispute proceeds to court often the dispute becomes secondary to the issue of who is going to pay the legal costs.

                          

Serious Problems

In January 2019, Donna noticed some small water stains to her kitchen ceiling & due to no response from the builder & with the problem getting worse, Donna contacted DFT again. Their advice was to take it to the next stage & Donna commenced getting her documentation in order to have a hearing in NCAT (NSW Civil & Administrative Tribunal).

From speaking to the Home Owners Warranty (HOW) insurer, Donna was of the understanding that she needed an order to get the items addressed. However, the Tribunal Member picked up on the fact the builder was now unlicensed & therefore, could not legally rectify the defects. Instead, she needed to get a money order & her evidence was lacking partially due to her lack of knowledge combined with some incomplete advice from DFT. Donna felt as though she was laughed out of court.

Under the direction of the NCAT member to get Expert Evidence, Donna rang around & found a local company that did building inspections. She was very specific: I need an Expert Report for a building dispute…its a court matter. Donna was told 'yes' but for reasons that remain unknown, she had been lied too...she paid around $900, added this Report to her evidence & requested another hearing.

At her next hearing, Donna again felt as though she was again being laughed at...the Member wasn't interested in the Report at all, claiming it as not to Expert standard, there was 'no proof, just opinion' & her matter was again thrown out.

By now Donna was extremely frustrated.

Donna got back in touch with her HOW insurer as they had advised her to keep them up to date. She again tried to send them the DFT letter showing the builder was suspended hoping this would trigger the insurance but was reminded that unless the builder had died, disappeared for over 12 months or become insolvent, Donna would need to secure a suspension money order from the tribunal.

By this stage, Donna had already spent a few thousand dollars chasing the order unsuccessfully, the insurer was entirely unhelpful & this 'merry go round was becoming a nightmare as the ceiling in my kitchen is covered in black mould & falling apart'.

Donna sought further advice from the DFT who referred her to the Home Building Advocacy Service (HoBAS). This free legal service was limited to 3 x phone calls. Donna was told: 'you need a proper Expert Witness & don't be fooled (again), expect to pay 3-6k'. She was also told she really needed a solicitor…Donna was flabbergasted.

In mid 2019, Donna was speaking to a friend who referred her to Tyrrells Property Inspections & in particular, Anthony Capaldi (Building Consultant). Our office quickly:
• referred Donna to 3 x specialist construction lawyers & she chose a solicitor to assist her
• arranged for Anthony Capaldi to review all available documentation & Reports and,
• complete an inspection of Donna's property in preparation of an Expert Report.

Donna's 2nd appearance in NCAT, with her solicitor in tow & the Tyrrells Report in hand, was intense but ultimately, 'chalk & cheese' with her previous experiences.

Firstly, the Member was 45 mins late, delayed from re-reading the reports & giving the builder sufficient time to arrive. The builder was a 'no show' in the end & had provided an affidavit response to the Tyrrells Report which thanks to her solicitor, was subsequently ignored.

Donna was glad she had decided to take a solicitor to NCAT because the Tribunal Member asked questions Donna couldn't have possibly have answered. Her solicitor was also 'cool under pressure despite being attacked by the member', and tactfully used the evidence from the Tyrrells Report.

At one point the Member questioned key areas of Donna's claim as 'rubbish' but her solicitor pointed out what 'the evidence stated' & being adequately prepared, had matched the relevant sections of the Home Building Act with the key features from the Tyrrells Report.

In the end, the findings & entire claim within the Tyrrells Report were awarded in full along with all court, solicitor & Expert Witness costs.

Donna’s solicitor again proved his worth at this final stage having unearthed up why the builder had been suspended for: not paying prior court orders. This resulted in Donna securing an 'Order effective immediately', which would reduce the time in which HOW insurer has to act by about a month.

Unfortunately, Donna's saga is yet to be over...the builder now has 28 days to reply upon which Donna’s solicitors will file for the order on her behalf. Once filed the HOW insurer may:
• pay the order & recommend suitable builders
• provide a list of remedial builders for Donna to choose from & they pay the builders directly for the scope
• send their Expert & request a conclave with Tyrrells consultant Anthony Capaldi, at further cost to Donna. Despite the court order, the HOW insurer may seek to water down the repairs & scope.
Another interesting fact is that despite the court order awarding costs in full to Donna, the HOW insurer will only reimburse her 75% of her reasonable legal fees & 90% of her Expert witness costs.

Whilst Expert Reports are a large portion of Tyrrells business, we would prefer that our clients have a trouble-free building experience.

Call our office today for assistance in managing quality issues during the building process, not after.

Alex & Anthony really helped me thru this difficult process.

Donna