Can the Department of Fair Trading force my builder to perform rectification work?

Building & Construction Law 30/01/2018 by Felicity Donald

For a home owner, engaging a builder to carry our residential building work, whether it is for a new home, renovations and extensions or a smaller project, can be a very stressful time.  One of the common issues that can arise and cause conflict with you builder occurs when the building works have not been completed properly and are defective.  Unfortunately, a home owner may sometimes find that some parts of the building works have either not be built to the plans and drawings or there are problems with what has been built.

In the first instance, you should always look at your building contract to find out your rights and obligations in relation to defective work.  For example, a building contract will usually require you to provide a list of defects within a short period of practical completion having been reached.  There are also other statutory warranties that apply to residential works.  We can help you with this and provide you with advice in relation to your rights.

If you are concerned about your building works and have spoken with your builder and attempted to resolve any issues amicably without success, one option is to contact he Department of Fair Trading and make use of their free, voluntary mediation service.  Both the builder and home owner need to agree to attempt a resolution in order to use this service.

As part of the process, the Department of Fair Trading may ask one of its building inspectors to undertake an inspection of the specific items complained about.  If the building inspector considers there are problems with the works, the Department of Fair Trading will issue a Rectification Order which sets our a list of work to be rectified or completed by a particular date.  It is a condition of the builder’s Contractor Licence that a builder comply with an Rectification Orders issued by the Department of Fair Trading.

Generally, attempting mediation through the Department of Fair Trading is a prerequisite to bringing residential proceedings in the NSW Civil & Administrative Tribunal.  However, it is not required if you choose to commence proceedings in the Local or District Courts in respect of your building dispute.

The NSW Civil & Administrative Tribunal has similar powers to issue a Rectification Order.  Such an Order is binding on both parties.  However, unless both parties are agreeable to the Rectification Order being made, the Tribuanl may prefer to make a monetary order for the payment of damages.

There are strict time frames that apply to home owners in making a claim for defective and/or incomplete works.  It is, therefore, important that you speak to an experienced Building & Construction Lawyer to obtain a proper assessment of your rights as soon as an issue arises.

If you require advice or would like to know more, please contact one of our experienced Building & Construction Lawyers for a confidential, no obligation chat.

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