JS Mueller & Co Partner, Bruce Bentley talks Home Owner Warranty Protection NSW with Clive Robertson 2UE Radio.

To listen to the full 2UE Radio interview click here.

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

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.

Disputes between neighbours take many forms. This paper will consider the law relating to some of the most common and challenging types of neighbourhood disputes that affect owners corporations and strata managers. These are: disputes about access to neighbouring lands; hazards such as collapsing retaining walls, landslips and rock falls; dividing fences and tree disputes.

In modern cities, neighbourhood disputes involving strata schemes are commonplace. And these disputes are likely to increase as the drive towards urban consolidation literally pushes neighbours closer together and into greater conflict.

It is therefore important that participants in strata schemes, from owners corporations to strata managers, have a basic understanding of the most common types of disputes and the laws applicable to them.

Click here to download the full paper – Neighbourhood_Disputes

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 Building and Construction Industry Security Of Payment Amendment Act 2013 is proclaimed to commence on 21 April 2014.

The Building and Construction Industry Security of Payment Act 1999 was amended by the Building and Construction Industry Security of Payment Amendment Act 2013. The amendments will not apply to construction contracts entered into before 21 April 2014. The Act applies to all construction contracts entered into by owners corporations for work on the common property.

The principal changes which affect owners corporations are as follows:

• Owners corporations will now be a principal under the main contract with the head contractor.
  A progress payment is to be made by a principal to a head contractor 15 business days after a payment claim is made or such earlier date as may be provided by the contract.
• It is no longer possible to contractually extend the period for the making of the payment.
  The contractor is no longer required to endorse a payment claim made under the Act in any way. This means that you must treat every invoice or payment claim under a construction contract or any construction arrangement as being subject to the Act.
• You will need to immediately enquire from your principal on receipt of any invoice for construction work, whether there is a dispute in relation to payment and, if there is, ensure that a payment schedule is prepared and served on the contractor within 15 business days of receipt of the invoice. Failure to do so will remove any right to withhold any part of the payment claim.
• Head contractors must now serve a supporting statutory statement with a payment claim which must include a declaration to the effect that all subcontractors have been paid.
• Failure to serve a supporting statement leaves the head contractor liable to a fine up to $22,000.00 but does not invalidate the payment claim.

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