Fair Trading NSW has confirmed that the 1 December 2014 commencement date for the NSW Home Building Amendment Act 2014 has been delayed to 2015.

The amendments will commence in two stages:

Stage 1:
It is anticipated that the critical change surrounding statutory warranties will commence mid-January 2015. The critical change to the warranties will be a shift from “structural defect” (which is the current position) to a warranty which will only cover a building defect which is a “major defect”.

If the defect is categorised as a “major defect” it will enjoy a 6 year warranty otherwise any defect which is not a major defect and/or a non-major item will only have a warranty for 2 years. The new definition of “major defect” will be more restrictive than the current definition of a “structural defect”. The new amendments will have retrospective effect.

Stage 1 will also have other amendments commencing mid January 2015 and they are as follows:

1. For the first time, statutory warranties will be implied into subcontracts entered into by the principal contractor who undertakes residential building work. These changes will allow an owners corporation to enforce warranties as a successor in title against subcontractors.
2. If a defect arises due to an owners defective design or specification the builder will not be held liable for that defect.
3. Within 6 months the owner must notify the builder and the subcontractor of a defect. If the owner fails to do so such a failure may result in the reduction of any damages.
4. Owners must not unreasonably refuse access to a builder who wishes to rectify the defect.
5. Courts will be required to give priority to rectification orders as opposed to monetary orders.

Stage 2:
This stage will involve the provisions that relate to re-drafting of contracts. The contracts will have to comply with the amending legislation hence these will be dealt with in the second quarter of 2015.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

• 11 Days until 1 December 2014!
• Do not get caught out!
• The time to act is now!
• Have your buildings inspected by a building consultant to check for defects!
• Avoid losing your rights to make a building defect claim!

1 December 2014 the home building legislation in NSW will change. The changes to the legislation may mean that some owners corporations will lose all of their rights to make claims for building defects.

• 34 Days until 1 December 2014!
• Do not get caught out!
• The time to act is now!
• Have your buildings inspected by a building consultant to check for defects!
• Avoid losing your rights to make a building defect claim!

At JS Mueller & Co we work with a number of reputable building consultants and engineers. We can organise a building inspection for any building that you manage to check for defects before the 1 December deadline.

But you must act quickly otherwise you may run out of time.

If you would like to discuss the changes to the NSW home building legislation or have JS Mueller & Co organise a building inspection, please contact us now on the details below.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

• 39 Days until 1 December 2014!
• Do not get caught out! 
• The time to act is now!
• Have your buildings inspected by a building consultant to check for defects!
• Avoid losing your rights to make a building defect claim!

Today, 8 October 2014, the High Court of Australia in the case of Brookfield Multiplex Limited –v- Owners Corporation Strata Plan 61288 & Anor [2014] HCA36 unanimously allowed an appeal by Brookfield Multiplex Limited from a decision of the Court of Appeal of the Supreme Court of NSW holding that Brookfield, the builder of a strata title apartment complex, did not owe a duty of care to the owners corporation of the complex to avoid causing financial loss resulting from latent defects in the common property.

The judgment of the High Court now confirms once and for all that generally the only claim available to an owners corporation for building defects is a claim for breach of statutory warranties under the NSW Home Building Act 1989.

Prior to this High Court decision, owners corporations were entitled to sue for breach of statutory warranties under the Home Building Act and also for breach of duty of care, i.e. in negligence at law.

Unfortunately, the High Court has now held that in general an owners corporation can only sue for breach of statutory warranties, but cannot sue a builder in negligence for a breach of duty of care because the builder does not owe a duty of care to the owners corporation.

For further commentary on this recent judgment of the High Court of Australia please view the following links:

1. Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & ANOR
2. Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 (8 October 2014)

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

According to a recent survey, 85% of new strata buildings suffer from building defects.

Sometimes the builder responsible for the defects wants to return to repair them.

But do you have to allow the builder back particularly if you don’t want to?

To view the full article click here – Building Defects and Your Builder

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

The Government has released draft regulations to the Home Building Amendment Act 2014 which provide for operation of that Act to commence on 1 December 2014.

A number of organisations made submissions to the Government in relation to those regulations and a final start date has not yet been confirmed. Anyone with a defect claim:

• which is not yet the subject of litigation or an insurance  claim
• where more than 2 years has elapsed since the date of completion of the building work; and
• relying on the defects being structural within the terms of the existing regulations

should immediately seek legal advice to confirm whether those defects will be covered as a major building defect under the new legislation.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

What should you be aware of?

On 9 May 2014 the Home Building Amendment Bill 2014 was introduced to the Legislative Assembly of the New South Wales Parliament. It passed that House on 14 May 2014.

The object of the Bill is to amend the Home Building Act 1989 (“HBA”) in connection with matters including:

• Penalties for unlicensed work;
• Contracts to do residential building work or specialist work;
• Contracts to supply kit homes;
• Statutory warranties implied into contracts;
• Provisions relating to contractor licences, supervisor certificates and tradesperson certificates including broadening the grounds for disqualification;
• Notification of insolvency, winding-up or de-registration of licence holders;
• Owner building;
• Resolution of building disputes;
• Disciplinary proceedings;
• Home warranty insurance;
• Owner builder kit homes and requirements for obtaining contractor licences;
• Other minor consequential or ancillary matters.

The HBA is an act with which strata title lawyers need to be familiar. Building defects are one of the largest areas of complaint from those living in strata schemes in this state. Unfortunately for those practicing in the area, the HBA is one of the most frequently amended pieces of legislation in New South Wales.

The emphasis of this paper is on the amendment of those areas of the HBA which are most commonly used by strata lawyers. This paper is not designed as a general overview of the HBA and the amendments and assumes a basic knowledge of the HBA from a strata perspective.

Click here to download the full paper Home Building Act Amendment

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

This building defect case highlights the uncertainty of relying on the date of issue of an occupation certificate for determining the time for bringing action and some of the appeal limitations under the Civil and Administrative Tribunal Act 2013 (NCAT).

For the full article please click here – HBA Warranty Reliance on Occupation Certificates

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

The Supreme Court found that any objection to a payment claim coming under the provisions of the Building and Construction Industry Security of Payment Act 1999 must be put into a payment schedule under that Act and served on the party making the payment claim.

To download the full article please click here Building and Security Payment Plan Objections

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.