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  • #7243
    Anonymous

      Dear Sir

      We have a Strata Scheme with 33 units. We are a 4 level with a car park underneath. We have had Building consultants create reports for defective works. We have been to the DFT who have advised the builder to Rectify the works. He did not do this by the due date and now subsequently has handed in his Licence. Could you please advise what actions we have left. We have Lawyers working on this that have not given us much confidence wit their ability. Is it possible to still sue the builder for monies or is it more realistic to go for the Developer considering this is the person we had a contract with? I would appreciate any advise as I feel like we have hired so many experts at a large cost to no avail. To top this off we have a very inactive Body Coporate.

      Regards
      Leonie 

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    • #12480
      Anonymous

        Hi Leonie

        There are broadly three avenues available to an owners corporation in relation to building defects in common property:

        1. HOW insurance claim – if your building is four storeys plus car parking and building work commenced after 1 January 2004, then you will not have this insurance available to you. If the work commenced before this date, then there may be HOW insurance available;

        2. suing the builder and developer for breaches of statutory warranties (if there have been breaches of those warranties set out in s.18E of the Home Building Act); 

        3. suing the builder and/or design consultant in negligence (depending on whether the building defect is caused by workmanship or design); or

        4. depending upon statements made by the builder/developer which have been relied upon by the owners corporation to it's detriment, there may be an action for misleading and deceptive conduct.

        Individual lot owners (in relation to defective lot property) may:

        1. take action against the developer for breach of the sale contract (but this very much depends upon the terms of the sale contract) or for misleading and deceptive conduct (depending upon pre-contractual representations made by the developer or it's agents and the reliance of the individual owner on those representations); or

        2. take action against the owners corporation for loss and damage suffered by virtue of a failure to maintain and repair common property (s.62 of the Strata Schemes Management Act).

        In order to provide more detail in relation to these potential causes of action, I will need further instructions in relation to the elements which make up each cause of action.

        Let me know if you have any questions.

        Regards

        Chris Kerin

        TEYS Lawyers

        (02) 9562 6500

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