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  1. #1
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    Default Builder dispute - lawyer

    Hello,

    We've been using one of the large builders in WA for some home renovations. We came across a defect that although the builder admits to, they refuse to fix (because it's too complicated).

    According to the "Notice to Home Owners" the builder must make good of any defects, so this seems to me as a breach of contract.

    Does anyone know if there are specific building or construction lawyers? If not, then what/who should I be looking for?

    We're in WA btw.

    Thanks.

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    Whats the defect?
    Do you have a idea of cost to fix? Is it $100, $1,000, $10,000....more??

    I assume WA has similar avenues like in Vic where you can take them to a "VACT" type organisation or Small Claims.

    Best to try and sort it before involving legal as a last resort else it could cost you a S&#t load of time and money
    Read the link below, there is some good advice including always have written communications, photo's where possible.

    https://www.consumer.vic.gov.au/hous...cts-and-delays


    As an example, I built with "A!$%& Homes" and whilst we were lucky in scoring some really good tradies for the most part, it only took a couple to push the project off the rails including a really crap project manager and owners that were just making life difficult for a really BIG stuff up at the excavation stage...even though they admitted it was their fault. Took a few months to resolve this one, as in the end I had to cough up additional money to get progress but boy, the gloves were off and I really made them work for their money!!! But hey, it was way cheaper and quicker to head down this path than taking them to VACT which your never certain on if they will rule in your favor or the builders. Each meeting I had, I'd document the discussions and either write minutes (dot points of what was discussed and agreed to) or sending out a informal email with a few dot points of what actions were agreed to.

    Key takeaway's to tracking and getting the issues resolved:

    • Phone conversions of smaller issue were always followed up with a quick email (written history).
    • where possible photo's of the defects in question
    • when they were pushing back hard - I received quality advice from other tradies that I trusted
    • And when they said they fixed it, I always inspected it, took photo's.....discovered many times the issue wasn't fixed, some times made worse and documented the finding in a email and followed up with a phone call.
    • Arm yourself with facts and seek as much info as you can about the issue so you at least go into the discussions with some reasonable knowledge of realistic options that are available to fix it, then you have a good chance at a negotiated outcome that may not be 100% your way, but is a good outcome never the less.


    Despite the significant stress of a lot of additional management overhead that I wasn't prepared for going into this project (4th time I've built) and many more disputes with this build which drew out the build time from 9 months to 20 months, the end result was of good quality....and in hind sight the really big bonus is learning a whole lot more on construction along the way. The wife wont ever build again as a result from this experience, but I'd build again tomorrow if the opportunity arose

    Remember issues will always happen with any project, but I find most are resolved with a quick conversation

    Hope this helps...and tell us more about your issue as there are some regulars here with years of experience in all sorts of construction areas.

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    Once you have moved to lawyers at 10 paces it just gets way to expensive. weigh up the cost and see what remedy you have with whatever small claims tribunal exists in WA for building disputes. Unless its major it just isn't worth the effort in many cases.

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    Quote Originally Posted by slepax View Post
    Hello,

    We've been using one of the large builders in WA for some home renovations. We came across a defect that although the builder admits to, they refuse to fix (because it's too complicated).

    According to the "Notice to Home Owners" the builder must make good of any defects, so this seems to me as a breach of contract.

    Does anyone know if there are specific building or construction lawyers? If not, then what/who should I be looking for?

    We're in WA btw.

    Thanks.
    What is the actual defect ??

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    https://www.commerce.wa.gov.au/publi...-contracts-act

    https://www.commerce.wa.gov.au/build...act-complaints

    Before you waste money on a lawyer take a read of the above, especially the 2nd link.
    I've been there before and putting in the correct notice/letter certainly sparked a fire under the builder to get the fault rectified.

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    Thank you all for the comments.

    Just expanding on the issue. This is a second story addition and the builder positioned the second story 100+ mm lower than where it should be based on the plan, this has spawned a few other issues regarding lower floor services. Repairing this is basically undoing a large amount of work.

    I understand your point about involving the building tribunal, but to me this is more than just the defect itself, the issue is also relating to breach of contract because the builder refuses to fix the defect as they are required by contract.

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    Whats the actual "real world" impact?

    Does this 100mm difference push all the ceiling heights lower on the ground floor or just one room or maybe its none ie: going from 2400 to 2300mm?
    Are there tangible impacts?
    What stage is the build at? framing completed, roofing completed.....

    If there is realistically no impact (and that's for you to determine), can you use this as a bargaining chip for additional work?

    As an example, had an issue that would have required significant work to rectify with the bathroom (shower taps and rose on the incorrect wall) picked up after tiling and painting completed. Landed on a negotiated outcome to fix another issue in relocating the solar hot water as they had it on the plan at the incorrect scale in a location the wood fire chimney was exiting...but because I signed off on the plan, they weren't budging. With this bathroom issue, they offered "is there anything else we could do instead of fixing this bathroom problem" and as there really wasn't any "real world" issue with the bathroom. They ended up moving the solar hot water...win win outcome.

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    3K Club Member johnc's Avatar
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    Just consider that in the real world sometimes builders go broke or abandon a rectification, or close the company down they run that business through. I would start by getting back to the Architect or Draftsman and get an opinion if the plans do clearly show the extra 100mm gap and that the builder substatially deviated from the plans lodged. Also don't get excited by "breach of contract" or that the contract actually requires him to rebuild the extension, the deviation may not be sufficient to go that far. terms like "best building practice" may come from the other end, once you get into a head on dispute and hit the courts there is absolutely no guarantee you will get what you want and you might end up walking away facing costs for both parties.

    This is flagging that going head to head usually produces few winners beyond the lawyers, read what Bart has written, your major fault might be a "so what" to someone else. Unless you are on very solid ground this has no hope of going anywhere.

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    If you hire a builder to build you a hexagon deck but they build a square deck. Is this a real-world problem or not? The deck is still a deck and can be used for the same purpose regardless of its shape.

    Not sure how it works in other states, but here in WA the Notice for the Home Owner (which is part of the contract) clearly states "any defect in work done or materials supplied under a contract must be made good by the builder". The builder admits the problem but refuses the repair because its too complicated, basically not fulfilling their part of the contract.

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    Quote Originally Posted by johnc View Post
    I would start by getting back to the Architect or Draftsman and get an opinion if the plans do clearly show the extra 100mm gap and that the builder substatially deviated from the plans lodged.
    John makes a really good point here. Some of the issues I encountered with my last build was poor or conflicting drafting quality/revisions. You may not have the same, but if they dont clearly show the additional 100mm, I'd be looking at a negotiated outcome particularly if there aren't any "real world" issues other than not built exactly to plan. Just be careful you don't let your emotions or potentially being a stickler for "build as per plan" overtake good decision making to resolve the situation.

    .....and not saying you are, but its very easily done when your building your dream extension/home and paying $'000 for a service - speaking from experience and in hind sight would have done some things differently

    With respect, the example of the deck isn't relevant. Its like comparing apples to oranges and the only thing that is relevant is your assessment of the issue and if there are significant tangible impacts. Just be careful because as John said, someone else may see this issue as minor and taking it to court doesn't guarantee you your desired result just because its 100mm out.....unless you can clearly demonstrate there are significant tangible impacts other than the height is 100mm lower than expected.

    Example of plan errors:
    my signed and emailed copy of the plans were different to the builders plans and some of the elevations had conflicting information that was never picked up by anyone including myself until one of many issues arose including the bathroom scenario. Needless to say, I've a much better eye for detail when reading plans as a result of this build

    The "real world" impact in my build was they completed a site cut and fill to a depth of 1200mm instead of 500mm as a result of conflicting plan info...looked like it was going to be a house in a pit that created lots of "real world" tangible issues requiring $10,000's to fix no matter what solution was proposed such as:

    • - working with the 1200mm cut
    • - backfilling with 40 piers (steel screw anchors or concrete filled holes to solid soil for the slab to sit on
    • - changing house design to be on stumps or brick piers and further significant excavation works to allow for future veranda's around the entire house and good site drainage (or risk being flooded with everytime it rained .


    For me, this is an example that had significant tangible impacts and had to be resolved resulting in significant cost to rectify and many discussions on options to settle on an agreed position.

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    Bart, I don't need to prove that there is a problem, I'll repeat what I said earlier "The builder admits the problem but refuses the repair because its too complicated". Whatever caused the problem, it was in the builders domain. There is no argument about that.

    And this is why I think the example of the deck is relevant. Because it's not just my assessment that there is a problem, there is an agreement about the problem.

    Of course the builder will attempt to minimize the issue, I would have been surprised if they didn't.

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    So far you mention a 100mm discrepancy, what are your concerns about this. Is it that the ceiling is 100mm lower or the ceiling to floor cavity is 100mm less. If the latter then what is the impact of that being your fear? What ceiling heights do you end up with?

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    We had heaps of issues when we had our house fixed under builders warranty.

    basically we bought the house as mortage reposession
    5 or 6 years later both bathrooms started leaking
    tiles peeling
    balcony sagged and tiles cracked
    whole bunch of other issues

    tracked down the builder, turns out he'd died 4 months after we decided to put the claim in, he "clearly" wasn't coming back to fix his stuff ups.
    warranty company hired some mob to come fix our issues to the tune of around $70,000 worth of work.
    tons of quality issues as they where working to a budget and clearly trying to come under it to make as much $$$$ as they could

    in the end we negotiated around a $6000 refund in cash to us for their crap work if we'd just put up with it (which we could). We where younger and a bit naive back then so $6000 cash was far more useful to us then arguing about crap quality painting etc but it was also simpler for everyone to just pay off the problem. So its something to consider in your situation, as others have echo'd if you can live with the 100mm deviation start negotiations now about a possible cash buy out, extra work to get done, upgraded windows etc etc.
    Remember if you don't sin, then Jesus died for nothing

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    Quote Originally Posted by phild01 View Post
    Is it that the ceiling is 100mm lower or the ceiling to floor cavity is 100mm less. If the latter then what is the impact of that being your fear? What ceiling heights do you end up with?
    There is no impact on habitable areas, so ceiling height is all ok both GF and UF. The reduction is only the FFL of the UF resulting with smaller cavity space between floors.

    My concerns:
    There is some visual impact from the outside due to the height difference.
    The reduced cavity space will limit the ability to provide GF services in the future (e.g. electricity, gas, AC, water, or anything that runs over GF ceiling).

    All of the above is ignoring the fact that 1) there is a defect, 2) the builder admits the defect, 3) the contract mandate the builder must fix defects, 4) the builder refuses to fix the defect.

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    Community Moderator phild01's Avatar
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    How does it inhibit future services, did the plans indicate free flowing voids ...which would seem unusual.

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    Quote Originally Posted by phild01 View Post
    How does it inhibit future services, did the plans indicate free flowing voids ...which would seem unusual.
    Yes. The plan defines GF ceiling height, UF floor level, and specifically shows cavity height.

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    Community Moderator phild01's Avatar
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    What I am getting at is how the lower cavity space disadvantages service space, what did it end up being with the 100mm reduction?
    I know it isn't exactly to plan but the difference may lack significance. What is it that could have been installed later that can't be done now with the reduced height.
    Also what size joists have been used for the upper level and what was indicated on the plan?

  18. #18
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    What does the building inspector say about it?

    Is it compliant with the requirements of a certificate of occupancy?
    Posted by John2b, And no, BEVs are not going to save the planet, which doesn't need saving anyway.

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    Not sure where you guys are going with this. My original question was not about whether this is a minor or a major defect.

    It is an defect. The builder accepts that it is a defect. The builder refuses to fix the defect as they are obligated to per the contract, not because it's minor/major defect but because it's too complicated.

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    Quote Originally Posted by slepax View Post
    Not sure where you guys are going with this. My original question was not about whether this is a minor or a major defect.

    It is an defect. The builder accepts that it is a defect. The builder refuses to fix the defect as they are obligated to per the contract, not because it's minor/major defect but because it's too complicated.
    This is a "Fix it Forum" what you need is a Legal Forum, perhaps try there.
    Posted by John2b, And no, BEVs are not going to save the planet, which doesn't need saving anyway.

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    As soon as lawyers get involved it becomes expensive, and you will end up out of pocket to some extent.
    I think most responses are trying to understand what impact the defect will have upon you. If there is no impact you will be throwing money at lawyers to fix something that will not affect you.

    Sorry don’t know of any specific lawyers, like above any mistakes have been either fixed or compensated in other ways when the mistakes do not have a specific impact on me.

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    Quote Originally Posted by slepax View Post
    It is an defect. The builder accepts that it is a defect.
    A defect would be when it is non-compliant ie a failure waiting to happen, while you say the builder accepts it as a defect that might be open to interpretation. From what you present here I feel you will endure a world of pain trying to satisfy any legal pursuance. I think it worthwhile to consider what is being offered here in help rather than taking a persistent dogmatic approach.

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    Quote Originally Posted by phild01 View Post
    A defect would be when it is non-compliant ie a failure waiting to happen
    A defect is what the guide published by the WA department of Building and Energy as exceeding the allowed threshold. I am not relying on my own interpretation here.

    Furthermore, if you asked for a 820mm door and you got 720 (or even less) that's not a failure waiting to happen. Maybe you won't consider it to be a defect but I would.

  24. #24
    Jon
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    Default Builder dispute - lawyer

    What would be required to rectify the defect?

    lk

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    Senior Stinkologist Sir Stinkalot's Avatar
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    Just out of interest, what form of building contract have you entered into with the builder?

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    Quote Originally Posted by slepax View Post
    Not sure where you guys are going with this. My original question was not about whether this is a minor or a major defect.

    It is an defect. The builder accepts that it is a defect. The builder refuses to fix the defect as they are obligated to per the contract, not because it's minor/major defect but because it's too complicated.
    Did he admit that in writing or was it verbal. If verbal you can't generally rely on it. Go talk to a solicitor, we have none here and this type of forum is useless for specific legal advice, guess what there is a law against unqualified people giving legal advice.

    I suspect you are being unreasonable and the courts may look beyond this perceived 100mm gap and ask just what injury have you suffered, if the build meets code, is habitable and the internal fabric what you contracted for then this might get tossed out on its ear. What would I know, you actually don't either unless you take this issue through the legal process.

    It's time to stop wasting everyones time including your own.

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    Quote Originally Posted by johnc View Post
    It's time to stop wasting everyones time including your own.
    Agreed. But people keep asking questions so I am just answering them.

    @Jon - it would mean undoing many weeks of work, not just labour but also cost of machinery and tool hire.

    @Sir Stinkalot - not sure what type of contracts are there but it's an industry standard contract, not a personally/individually drafted one.

    @johnc - I do have that in writing.

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    Quote Originally Posted by slepax View Post
    There is no impact on habitable areas, so ceiling height is all ok both GF and UF.
    Great, move on with life.

    Quote Originally Posted by slepax View Post
    My concerns: There is some visual impact from the outside due to the height difference.
    Good luck with arguing your case in court that a 100mm difference in final floor height has any visual impact. I doubt judge will see it this way based on cases that have gone down the legal route. Not putting in a window in, or a window with obscure glass...you would have a strong case. But a 100mm elevation difference making a subjective visual difference...forget it.

    Quote Originally Posted by slepax View Post
    The reduced cavity space will limit the ability to provide GF services in the future (e.g. electricity, gas, AC, water, or anything that runs over GF ceiling).
    Is this real or perceived in terms of the ability to run these services in the future and at what additional cost and what services are you planning to run, have you concrete plans to perform further renovations etc etc....Can those services be run now before the floor is fixed in place. Just saying as it will be asked and you will need to clearly demonstrate/quantify the impact. If you take the legal route, you would need a pretty strong case to demonstrate significant impacts which would issue a court order the builder to demolish what has been constructed and start again.

    Quote Originally Posted by slepax View Post
    All of the above is ignoring the fact that 1) there is a defect, 2) the builder admits the defect, 3) the contract mandate the builder must fix defects, 4) the builder refuses to fix the defect.
    No one is ignoring any of that.
    Your missing the point with options to take an alternative path with some examples provided on working through the issues or questions for detail to further understand the situation/impacts...that aren't forthcoming with answers.
    Haven't seen any of your responses that would clearly indicate significant hardship/impacts and if you cant demonstrate this in court then you are essentially in a world of financial pain. Links were provided where you could seek further advice.

    That's it from me, all the best with your project.

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    Quote Originally Posted by slepax View Post

    @johnc - I do have that in writing.
    Like to see that... or is it the builder agreeing it was a variation to the plan!

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    Default Builder dispute - lawyer

    Let me guess, the builder ordered 300mm posi trusses instead of 400mm?

    It may affect the staircase and air cond ducting.

    Does the air cond ducting affected?

    I increased my posi trusses for that very reason.

    Se

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    Quote Originally Posted by JB1 View Post
    Let me guess, the builder ordered 300mm posi trusses instead of 400mm?

    It may affect the staircase and air cond ducting.

    Does the air cond ducting affected?

    I increased my posi trusses for that very reason.

    Se
    They cut the trusses on site. The issue was related to some other steel work that was ordered in advance.

    And yes! Some AC ducts are severely compressed. If I could do it again I would definitely set the height higher, but that's we used use a builder, they should be the experts.

    @phild - it was not a variation but rather in the original plan.

    Just a note - I am not trying to be mysterious about this, but I do not know who reads these forums and since the issue is still in air, better say less than more.

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    Quote Originally Posted by slepax View Post
    @Sir Stinkalot - not sure what type of contracts are there but it's an industry standard contract, not a personally/individually drafted one.
    So you do not know what contract that you have signed with the builder? The legally binding contract should have a dispute resolution clause in it, you are currently in dispute. I'm not sure what the "Notice to Home Owners" or the guide published by the WA department of Building and Energy is, but you should be bound by a contract. Post #9 seems to suggest that you have a contract in place - what does it say?

    I certainly hope that they haven't put in 300mm
    posi trusses instead of 400mm as suggested by JB1. Spans would have been calculated for the specified type so there is more at risk than compressing the a/c ductwork.
    Licence to drill!

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    Quote Originally Posted by Sir Stinkalot View Post

    I certainly hope that they haven't put in 300mm
    posi trusses instead of 400mm as suggested by JB1. Spans would have been calculated for the specified type so there is more at risk than compressing the a/c ductwork.
    Didn't get an answer about joists! #17
    Also what size joists have been used for the upper level and what was indicated on the plan?

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    Default Builder dispute - lawyer

    Quote Originally Posted by phild01 View Post
    Didn't get an answer about joists! #17
    I think this is one of those treads that will fizzle out without any resolution.

    To be fair to the original poster the initial question was if anybody how could recommend a lawyer with experience in construction matters - not a diagnostic exercise into what the suspected defect it.

    Trouble is we are all more interested in the issue and how it came about 🤓
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    @Sir Stinkalot - it's a standard Masters Builders WA contract, I am not sure what types of contracts are there so can't say what type it is. The Notice to the Home Owner is a government document that [to my understanding] is compulsory to the builder and must be part of any building contract in WA. It sets some principals that any builder must follow, regardless of the specific contract being signed.

    @phil - it's a bit more complicated than that, I sent you a PM

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    Default Builder dispute - lawyer

    Quote Originally Posted by slepax View Post
    @Sir Stinkalot - it's a standard Masters Builders WA contract, I am not sure what types of contracts are there so can't say what type it is. The Notice to the Home Owner is a government document that [to my understanding] is compulsory to the builder and must be part of any building contract in WA. PM
    That notice to the home owner doc seems strange and I would have thought that a lot of the information would be in the actual contract - but each state is different.

    The last section talks about how to handle disputes. You need to formally advise the builder and then lodge with the building commission (or whoever it was).

    Your MasterBuilders contact (which you should have a copy of) will have a similar clause about how to handle a dispute - and this is the course of action you need to take if you are not happy with the builders response to the item in question.

    The difficulty is that if you head down this path, it is a difficult position to repair the relationship from .. by the sounds of it there is still plenty of work left to go so trying to resolve the issue without a souring of the relationship would be beneficial.
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    Any updates?
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    By vGolfer in forum Structural Renovation
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    Last Post: 5th Oct 2005, 09:39 AM

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