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Are you affected by the collapse of Huxley Homes?
Liquidators have been appointed to Huxley Homes. Issues arise as to what rights Owners now have and what remedies are available to have your homes completed or defective work rectified.
Each case will be slightly different, however fundamentally you may be a creditor of the company in liquidation and would have a right as a creditor. This is dealt with through the Liquidator. Experience shows that it is very unlikely that any money will be seen by the Owners who are creditors of the company.
Do you have a Home Owners Warranty Insurance or similar which is required to be provided by the Builder in relation to any home building works carried out? As we understand there is a possibility that Home Owners Warranty has not been obtained by Huxley Homes in relation to some of the projects, however most of the affected Owners have Home Owners Warranty Insurance to cover their building works.
Home Owners Warranty Insurance is last resort insurance and is only triggered by certain events. One of the events is the insolvency of Builders and the appointment of a Liquidator. In those circumstances if you have the benefit of Home Owner’s Warranty Insurance, a claim can be made against the Home Owner’s Warranty Insurer.
We have reviewed a few of the Contracts with Huxley Homes and there is a question as to who is the contracting party. To make a claim the Owner would have a Contract with the company to which the Liquidator is appointed. We would expect that this would be no issue.
From the enquiries made of us it appears that the contact for the home warranty claims are through Builders Warranty Claims, QBE Australia with whom we have dealt with on many occasions where there has been a collapse of a Builder.
If you have a Home Owner’s Warranty, a Claim Form should be lodged with Builders’ Warranty Claims, QBE Australia. It is critical that the Forms are completed in an appropriate manner. The Claim Form has a comprehensive checklist. In our experience it is useful if the Owners prepare a draft response and we can review the draft response.
Depending on the stage of the works that exists at your property, there will be a requirement for the appropriate Building Consultant to prepare a report in relation to the matter. Each case is different. It is critical that the report is comprehensive and covers all items.
We are able to advise Owners of a number appropriate Building Consultants who would be able to prepare the necessary Building Report. It is critical to remember that your claim is in effect only as good as the submission as to the defects and incomplete works for which a claim can be made.
There are time limits that apply and claims should be made as soon as possible. This will not only assist you but will ensure that you are on the appropriate list in the appropriate order to have the matter dealt with as soon as possible.
In circumstances such as Huxley Homes, there will be a range of options to complete your house which may be available and it may be that negotiations could be had for an appropriate Builder appointed by the Home Owners Warranty Insurer to complete the project. This will be dependent upon many issues.
Recently we have been involved successfully for numerous clients making recovery under of Home Owners Warranty Insurance for Owners adversely affect by the collapse of Bermuda Constructions Pty Limited earlier this year.
If you have unfortunately been caught up in the collapse of Huxley Homes, please telephone Richard Watson an experienced Building and Construction Lawyer or his Personal Assistant Shereen Da Gloria on 9221 6011.
Richard Watson is an Accredited Specialist, Commercial Litigation in the stream of Building and Construction, Watson & Watson, Solicitors.
In New South Wales, there is a system for Contractors (and Sub-Contractors) in building projects to recover moneys owed to them “quickly”. This system has been put in place under the Building and Construction Industry Security of Payments Act (SOP Act). There are some exceptions in the SOP Act. This Act is a law of the NSW parliament.
This article relates to a situation that sometimes arises during a building project where one of the parties becomes insolvent. This insolvency may apply to a corporation or an individual and may apply to both the Builder and the Owner or principal in a project.
In NSW a person who enters into a House Building Contract with a Builder can in certain circumstances, sue that Builder if the house has building defects. In those circumstances, the Owner must bring the case within a certain time frame, which is the Limitation Period.
In New South Wales there is a system by which building professionals “check” that new residential buildings and major renovations have been built to the appropriate standards. This system of certification, which involves the issue of construction certificates and occupation certificates, was at one stage exclusively managed by local authorities.
The Opal Tower building at Australia Avenue at Sydney Olympic Park has recently been in the news. Various people noticed cracking in this multi-storey apartment building in January 2019. After investigation all of the residents left the building and after many weeks have not returned. It is not known when the extent and nature of the defects in the building will be ascertained and how and when the building will be repaired.
When a land owner wants to construct a building, the relevant planning authority will require the owner to have a plan to drain stormwater from the building and the surrounding land. The authority, (usually the local council), will generally insert that requirement into the Development Consent to ensure that the proper drainage of stormwater will become a condition to be complied with prior to the final approval or the construction of the building.
Building law - Who is a successor in title who may obtain rights for breach of Statutory Warranty under the Home Building Act?
Under the NSW Home Building Act, a person who is a party to a residential building contract with a Builder has certain rights. Implied into such Building Contracts is the statutory warranties provided for under Section 18B of the Home Building Act. We have provided further information in relation to these warranties in our article dated 2 February 2018.
When a person in NSW wants to build a house, townhouse or block of apartments, that person must seek approval to undertake the building works from the local certifying authority. That certifying authority is generally the local council or municipal body. The person seeks this approval by lodging a Development Application with the local council or municipal body. In some circumstances the approval can be granted by a private certifier.
Watson & Watson have been involved in many issues where valuations of real estate were required to enable a party to receive “compensation” based on the valuation. In the past 18 month we have given advice and engaged valuers in relation to matters concerning the following issues.
The NSW Home Building Act, 1989 is a piece of legislation designed to protect Home Owners from defective building works. When parliament passed the legislation into law it recognised that Owners were at a disadvantage when dealing with Builders.
In August 2018 The Owners – Strata Plan 66375 v King the NSW Court of Appeal made findings and decisions in relation to the obligations of the Developer and the Builder under the statutory warranty regime under the Home Building Act.
The High Court of Australia has recently affirmed that there are only limited opportunities for appeals against security of payment determinations by adjudicators.
Watson & Watson have been involved in many cases involving building and construction in particular residential building issues considered in various Courts and Tribunals including particularly at the New South Wales Civil and Administrative Tribunal (NCAT) or its predecessor Consumer Trader and Tenancy Tribunal (CTTT).
Expert witnesses are under obligations of independence and an overriding duty to the Court and Tribunals to present their opinion and evidence accurately and without bias. These duties are well documented in Court cases and also in Codes of Conducts for Experts in various Courts and Tribunals. Providing reports and giving opinion and evidence in accordance with the Code including impartially on matters relevant to the area of expertise of witness overrides the Experts duty to a particular party.
An Owner will either engage a qualified Builder to carry out the work or may obtain a Home Owners Building Permit. This article relates to matters other than work undertaken by the Home Owner directly and in particular with a Home Owner Building Permit.
Can an Owner Always Claim for Costs of Rectification or Defective or Incomplete Work?
This was considered by the NSW Court of Appeal in 2005 in the case of Berwarrina Shire Council v Beckhaus Civil Pty Limited  NSWCA 248 (Berwarrina case).
Watson & Watson have been acting for owners, Builders and others in proceedings brought generally by Owners or subsequent Owners who may be entitled to bring a claim in numerous jurisdictions including the Civil and Administrative Tribunal (NCAT) which has jurisdiction for claims up to $500,000.00. Other claims in excess of that sum are commenced in the District Court of NSW or the Supreme Court of NSW, each of them have jurisdiction.
There are thousands of disputes relating to the quality of building works in particular concerning the construction of residential property including units, apartments, townhouses, duplexes, houses. The Home Building Act 1989 deals with obligations and rights of the parties including the Builder and Owner.
Sub-Contractors Statements – Does the Principal Contractor have a right to withhold payment to a Sub-Contractor who fails to provide a Sub-Contractor’s Statement. What are the consequences?
Subject to a few exceptions there is legislation including the Workers Compensation Act 1987, the Payroll Tax Act 2008 and the Industrial Relations Act 1996 by which a Principal Contractor may withhold payment to a Sub-Contractor if the Sub-Contractor fails to provide a Sub-Contractor’s Statement, in effect a declaration that the Sub-Contractor has paid all its obligations under the Workers Compensation Act, Payroll Tax Act and Industrial Relations Act.
The Home Building Act 1989 relates to the carrying out of residential building work. Prior to the Home Building Act one needed to look at the express terms of the Contract to determine the obligations of the parties.
More often than one would expect we find that Builders and Owners who enter into Agreements for the construction of renovations or new homes do not have agreements which are enforceable particularly by the Builder against the Owner.
There are many “standard form Contracts” which are in existence including NSW Residential Building Contract for Homes issued by Home Industry Association (HIA), Master Builders Association (MBA) or Australian Building Industry Contracts (ABIC) to name a few.
Often we at Watson & Watson are approached by an Owner or a Builder, where the Owner claims that all moneys have been paid for the building works and that the Builder will not provide the Certificates required to enable the issue of an Occupation Certificate relating to work that has been undertaken at the home.
Building and Construction Security of Payment Act – Enforcement of Adjudication Determination by Garnishee - Obligation on a Claimant?
The Court of Appeal of the Supreme Court of New South Wales recently considered the obligations of a Claimant who had an Adjudication Determination in its favour for approximately $11 million in garnisheeing the Developer’s Bank Account.
In the Court of Appeal Decision Ku-Ring-Gai Council v Chan decided 7 September 2017. Ku-Ring-Gai Council as Certifier was held not liable to the Owner Builder or to the subsequent Purchasers. This was even though Council Inspectors inspected the works on several occasions and failed to identify defects or that the building was not in accordance with the approved plan. The Council issued an Occupation Certificate. The property has been occupied.
When two parties run a Court case and the Court makes a decision, generally the Court awards costs to the winner of the case. So if a Defendant wins its case, the Court will order that the plaintiff pay the legal costs of the defendant.
A recent High Court decision issued on 21 December 2016 has underlined the need for Builders and their lawyers to take care in conducting cases involving Security of Payments claims. That case was the decision of Southern Han Breakfast Point Pty Limited and Lewence Construction Pty Limited.
The Court of Appeal in New South Wales has recently considered an appeal on a case over the Security of Payments Scheme under the Building and Construction Industry Security of Payment Act 1999 (NSW) which could have greatly altered that scheme.
A recent decision of the NSW Supreme Court has confirmed it is vital that parties claiming for building defects obtain properly prepared Building Reports from appropriate and acceptable Experts to give evidence on your behalf in order to recover your losses.
The NSW Court of Appeal is currently weighing the issue of whether a person who has bought a defective building can sue the Certifier of the building.
The Federal Government recently passed changes to the Law which may affect Building Contracts, with those changes scheduled to commence in November 2016.
Building Licences in New South Wales are issued by the New South Wales Government.
A person who applies for a Building Licence in New South Wales can often find the process complicated. New South Wales law requires that a person who applies for a Building Licence should not only have sufficient education but also enough experience being supervised by a Builder. The rules in New South Wales set out the required building experience, which can involve working on building projects under the supervision of a registered Builder.
A selection of recent Building & Construction matters in which we have acted that it will provide prospective clients with a good indication of the type and complexity of matters we handle.
This e-Bulletin is to make builder members aware that on 1 September 2010 all building certification work undertaken by a council, must be undertaken by a council officer who is an accredited certifier under the Building Professional Board certifier accreditation scheme.
Expert Determination - When May They Be Impugned?
This paper will focus upon some practical issues that arise in relation to the use of an expert to make a determination. It is hoped that the matters which are identified will assist in avoiding pitfalls that may be overcome in drafting an agreement to submit a dispute that may arise under it for expert determination and also to identify the factors which circumscribe court action which might arise as a result of such a determination.
The Dividing Fences Act provides that adjoining owners of property are required to share equally the costs of a “sufficient dividing fence”, what is a “sufficient dividing fence” will depend upon all the circumstances of the case.