Defective building work

When construction defects arise, owners must decide whether to allow the original builder to fix it. The primary concern is whether the recipient of the building work is acting unreasonably by not allowing the builder to remedy their defective work.

The Court has identified several principles in determining how to resolve disputes over defective construction work. They are as follows:

• An innocent party who suffers a loss due to a breach of contract is required to act reasonably so as to recover the loss. That party will usually have to make reasonable attempts to mitigate the loss;
• An innocent party whose property is damaged as a consequence of another’s fault is entitled to recover the costs of remedying their property;
• It is for the party at fault to prove the innocent party acted unreasonably if they are not allowed to remedy their defective work;
• Court proceedings are relevant to the obligation to not act unreasonably;
• A recipient of building work must give the builder a reasonable opportunity to rectify any defects, even if this is not explicitly stated in the contract. This opportunity is to allow the builder to minimise their damages;
• One relevant factor for ‘reasonableness’ is the attempts the builder has made to repair the defects in the past and whether the owner has lost confidence in the willingness and ability of the builder to do the work.

Summary

Firstly, building owners do have an obligation to allow the original building contractor an opportunity to fix any defects. This opportunity will allow the builder to minimise the damages and costs it will have to pay. However, the builder can lose this right if the owner can show that they acted reasonably in their conduct and that they have lost confidence in the builder’s willingness and ability to do the work.

If you have further questions, please contact us at frank@franklaw.com.au.

This is not legal advice.