Home Building Tips for Builders in NSW

Defective Work - The Home Owner told me to do it

Where a Builder performs building work that is inconsistent with the plans or specifications, the Building Code of Australia, or any other relevant codes and standards, and because of this those building works are deemed defective, then:

• the Builder will have contravened the Statutory Warranties under the Home Building Act 1989 (NSW); and
  
  
• the Builder will also be in breach of the ‘mandatory conditions’ that are required to be in every building contract for residential building work in NSW.

In such circumstances, the Home Owner may be able to claim compensation against the Builder for carrying out defective building works.

Question: What happens if it is the Home Owner has instructed the Builder to carry out the building works in this way?

Where:

1. the Home Owner has instructed the Builder to carry out the building works in a particular way; and
   
   
2. that ‘particular way’ is contrary to, or inconsistent with:
   
   
   • the Building Code of Australia; or
   • any relevant codes or standards; or
   • the conditions of any relevant development consent or complying development certificate; and
     
     
3. the Builder nevertheless follows the Home Owners instructions and carries out the building works in that ‘particular way’,

then who is liable?

Defences for the Builder

Mandatory Conditions

Every building contract to carry out residential building works in NSW must contain a clause stating that:

1. the building works must comply with the Building Code of Australia, all other relevant codes, standards and specifications, and the conditions of any relevant development consent or complying development certificate; and
   
   
2. the Builder is not liable if the building works do not comply with the requirements above if the failure relates solely to:
   
   
   
   • a design or specification prepared by or on behalf of the Home Owner (but not by or on behalf of the builder); or
     
     
   • a design or specification required by the Home Owner, if the Builder has advised the Home Owner in writing that the design or specification contravenes the above requirements.
     
     

Defence to a breach of the Statutory Warranties

Under section 18F of the Home Building Act 1989 (NSW), the Builder is not liable if:

1. the Builder advised the Home Owner in writing against carrying out work in a particular way, due to a potential breach of a Statutory Warranty; and
   
   
2. the Home Owner nevertheless instructed the Builder to carry out the work in that particular way; and
   
   
3. the building works that relate to the above instruction are now defective.

As a Builder, how can I protect myself?

When you become aware that building works required by the Home Owner may not comply with the Building Code of Australia, any other relevant codes, standards and specifications, or the conditions of any relevant development consent or complying development certificate, you should:

• write to the Home Owner, advising that the building works may not comply with a particular code, standard, specification or condition.  In this document, you should also indicate which particular code, standard, specification or condition the building works may not comply with, and the reason for potential non-compliance; and
  
  
• request that the Home Owner provide you with his or her instructions in writing.

If the above two steps are followed, it is very likely that the Builder will be protected.

UPCOMING CPD SEMINARS All of our CPD Seminars are 6 hours in length and allow you to claim 12 CPD Points in ONE DAY. Builders now have nine (9) different CPD Seminars to choose from.

To REGISTER for a CPD Seminar, complete the attached Registration Form or visit www.homebuildingonline.com.au

Online CPD Courses

We have 4 NEW Online CPD Courses to choose from – a total of 24 Online CPD Courses that are now available for builders in NSW.

Listed below are our available Online CPD Courses – click on an Online CPD Course to view further information about that Course:

1. Liability of Building Professionals - NEW
   
2. Construction Management Tips - NEW
   
3. Safety Hazards On Site (Part A) - NEW
   
4. Safety Hazards On Site (Part B) - NEW
   
5. Project Management
   
6. Preparing Business Documents
   
7. Financial Management
   
8. Going Green with Building Sustainability
   
9. Builder’s Summary of the Home Building Act
   
10. Security of Payment Laws 
    
11. Do It Yourself Debt Recovery
    
12. Tendering Tips in Home Building 
    
13. Home Building Contracts in NSW 
    
14. Dealing with Sub-Contractors      
    
15. Running a Small Building Business 
    
16. Tax Summary for Small Business
    
17. Tips on Playing the Building Game 
    
18. Basics of the Employment Relationship            
    
19. Basic Contract Law            
    
20. Fair Work Laws – A Summary 
    
21. Handling Home Building Disputes 
    
22. Understanding Workers Compensation 
    
23. Builder’s Guide to OHS 
    
24. Bullying on the Building Site