In the event a homeowner claims there have been defective works in the construction of their home, a homeowner can make a building claim to the Consumer Trader & Tenancy Tribunal (CTTT) seeking an order for the licenced contractor to pay damages for the costs of rectification works. As an alternative avenue to the CTTT, the homeowner can file a Home Building Complaint Form with the Home Building Service who may then investigate if the construction works are defective. If it is found that the works are defective, a building inspector will issue a Rectification Order on the licensed contractor to rectify the defective works. You should seek legal advice prior to lodging any claims against the contractor as your personal circumstances will dictate which avenue will achieve the best outcome. More importantly, lodging a building claim with the CTTT may render any previous Rectification Orders null and void.
In the case of Pastrovic & Co Pty Limited v Department of Services Technology and Administration [2012] NSWADT 177, Mr Pastrovic and Pastrovic & Co Pty (the Company) were contracted to construct a dwelling. It was alleged by the homeowner that the building works were defective. After a building inspector investigated the defective works, the building inspector issued a Rectification Order pursuant to s 48E of the Home Building Act 1989 (NSW) (the Act) on grounds that the residential building work was incomplete and defective. Mr Pastrovic and the Company were unable to rectify all of the defects and accordingly the Department of Fair Trading (the Department) issued a Notice To Show Cause against Mr Pastrovic and the Company and subsequently made the decision to fine Mr Pastrovic $2,000.00 and the Company $5,000.00 on grounds that they were both guilty of improper conduct for the breach of a statutory warranty.
Mr Pastrovic and the Company both appealed the decision to the Administrative Decisions Tribunal (ADT) and successfully argued that due to a CTTT claim being filed after the Rectification Order, the Rectification Order ceased to have effect. As a result, the orders made by the ADT were stayed until the matter with CTTT concluded.
Contrary to obtaining a quick resolution through the Department, due to the Rectification Order ceasing to have effect, the parties had to subdue to the CTTT proceedings which were significantly more costly and time consuming. After two and a half years into the CTTT proceedings, the parties negotiated an out of court settlement. If you are a homeowner considering filing a building claim with the CTTT, or if you are a licensed contractor having to manage a CTTT building claim, Rectification Order or Notice to Show Cause and require some assistance, feel free to contact us for a free consultation.
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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.