Building & Construction Lawyers Sydney

How our Sydney Building Dispute Lawyers can help you enforce your rights

Homeowners, building contractors and subcontractors become involved in building disputes for a variety of reasons including bad faith behaviour, non-payment, carelessness, incompetence and issues relating to product suitability or the quality of building work. In some circumstances, disputes arise even where the parties to the contract are acting diligently and in good faith but disagree about the meaning of a contractual term or whether a document forms part of the contract. Whatever the nature or cause of your dispute, our Sydney building dispute lawyers will protect and enforce your rights.

Defective building work and the statutory warranties

Where a building dispute involves an allegation of building defects or inadequate materials, the parties may benefit from the advice of an independent third-party expert. Resolving the dispute in accordance with the opinion of the expert will save the parties the time and expense of litigation which will likely be determined by expert opinion anyway.

Residential building work defects will be subject to the statutory warranties in the Home Building Act 1989 (NSW). The statutory warranties are ‘implied’ into every home building contract and cannot be excluded by a contractual term or any other agreement or instrument. The statutory warranty period is 6 years for a ‘major defect‘ or 2 years ‘ in any other case’ (simply referred to as ‘minor defects‘). Homeowners wishing to claim under the statutory warranties will be restricted by the warranty period expiry date and the classification of the relevant building defects as either ‘major defects’ or ‘minor defects’. For detailed information regarding the statutory warranties, please refer to pages 9 – 12 of our free online ‘Home Building Act Essentials‘.

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Building disputes involving claims for delay or variations

Where the building dispute relates to a claim for delay or contract variation work, the parties should first undertake a detailed review of the available documents and records, and, where possible, negotiate a compromise in good faith.For delay claims, the parties should gather as much supporting evidence as possible including delay notices, weather records and other relevant documents to ascertain the extent of genuine and claimable delays.

Where a claim for variation work is disputed, contractors should compile all signed variation notices, or, where there are no supporting notices, relevant correspondence with the owner, subcontractor invoices and cost breakdowns for the relevant items of work. It is important that contractors understand that any variation to a home building contract is unenforceable unless it is in writing. Obtaining payment for disputed variation work not supported by a written notice of variation will require the contractor to pursue a quantum meruit claim.

Delay and variation work disputes often involve a genuine misunderstanding between the parties which can be resolved by patient and thorough analysis of documents and correspondence.

Dispute notices and the contractual requirements for dispute resolution

Where an issue cannot be quickly resolved by discussion and agreement, a formal process of dispute resolution is necessary. In most cases, the contract will first require the giving of a detailed dispute notice and a period of time for a response prior to instituting any mediation or legal proceedings. It is important that parties to the contract understand the contractual requirements for dispute resolution and adhere to their contractual obligations before taking any further steps. A dispute notice should be sufficiently detailed to bring all outstanding issues to the attention of the defaulting party to enable them to clearly understand the matters in dispute.

The Security of Payment Act

Disputed progress payment claims will generally be referred to an adjudicator for determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Security of Payment Act”). Importantly, subcontractors and head contractors under a principal contract may have a statutory right to suspend work in circumstances where the payment claim is not paid or responded to appropriately, even where there is no corresponding contractual right to suspend work.

Subcontractors should immediately seek advice from building dispute lawyers in the event of a disputed progress payment claim. We recommend our Security of Payments Act Essentials as a helpful guide to this legislation governing construction industry progress payments in NSW. Our ‘Security of Payment Act adjudication applications and responses’ webpage contains other relevant information.

Suspending work and terminating the contract

The parties should exhaust all efforts to resolve the dispute before taking more serious steps. An innocent party to a contractual dispute may commit a serious breach of the contract if they suspend work, terminate the contract or commence proceedings without first satisfying any dispute resolution mechanism embedded within the contract.

The right to suspend work or terminate the contract is governed by the contractual provisions, the Security of Payment Act and the common law. It is important that building industry participants understand that these rights – particularly the right to terminate – do not ordinarily arise simply because one party breaches a term of the contract or is difficult to deal with.

Where a party terminates the contract without the right to do so, the unlawful termination is, in fact, a repudiation (rejection) of the contract which the other party may elect to accept. That party may then themselves lawfully terminate the contract and claim damages. It is for this reason that contractors and property owners should always seek legal advice before terminating a contract, and, preferably, before suspending work or denying access to the building site.

Mediation and litigation

Building disputes are often resolved by open and honest dialogue between well-advised parties to the contract acting constructively and cooperatively. Any misunderstanding or disagreement should be addressed directly to the other party at the earliest opportunity to minimise the extent of the dispute and to preserve the commercial relationship between the contractor and homeowner. Where the dispute cannot be resolved by cooperative efforts, the parties may agree to participate in mediation or one party may commence legal proceedings. If the contract has not been terminated, the contractual rights and obligations of the parties will continue through the course of the proceedings.

NCAT or court proceedings – our Sydney Building Dispute Lawyers are experienced litigators

The Home Building Act 1989 (NSW) makes NCAT chiefly responsible for resolving home building claims up to $500,000 in NSW. These claims may be commenced in any court of competent jurisdiction, however, the proceedings must be transferred to NCAT if the defendant makes an application for a transfer. There are important considerations to be made when deciding whether to commence proceedings in NCAT or a court and claimants should seek advice from building dispute lawyers before making any application. Legal proceedings can be costly and stressful and should only be an avenue of last resort. It is our practice to avoid legal proceedings where possible, however, where legal proceedings cannot be avoided, we will litigate the matter vigorously and we play to win.

Our Sydney building dispute lawyers provide services including:

preliminary advice and case appraisal
dispute notice, payment claim and payment schedule reviews and drafting
letters of demand
negotiation and mediation
Security of Payment Act payment claims, payment schedules, adjudication applications and adjudication responses
building industry-related debt recovery and debt enforcement matters, and
proceedings in NSW courts and the NSW Civil and Administrative
Tribunal (NCAT) in relation to:
- breach of contract claims
- breach of statutory warranty claims
- quantum meruit claims
- delay and liquidated damages claims.

Disclaimer

The information provided above is not to be taken or relied upon as legal advice and Jason Francis Commercial and Construction Lawyer will not be responsible for decisions made or acts or omissions undertaken in reliance on this information. It is information intended as a guide only. You should obtain independent legal advice in respect of any issue or query you may have after reading this information.

Liability limited by a scheme approved under Professional Standards Legislation.

What our clients are saying

I engaged Jason to draft an application for federal government approval in relation to mining operations in Papua New Guinea. Jason did a great job drafting and compiling the necessary documentation and we subsequently obtained the necessary approval.

Martin Wilson

CAVALIER GOLD PTY LTD

We became involved in a dispute with a builder following serious building defects in the early stages of the construction of our new home. We took the builder to court and were able to settle early without the cost of a hearing. It was a good result for us.

Helen Nguyen

FARFIELD EAST

Jason helped me with a difficult court matter which posed a real threat to my horse-training business. Thanks to Jasons professional and thorough preparation, I achieved a great outcome and my business was able to continue unaffected.

Stephen Byrne

HAT CREEK PTY LTD

I was in a very critical situation with a building company wanting money that was not owed to them. Jason was very understanding & professional in attempting to negotiate with the Company. I had a great deal of confidence that he would provide a positive outcome. I would recommend Jason highly to anyone dealing with a difficult situation in Commercial or Construction Law

Dianne Aslin

Frequently asked questions

How do you work?
We offer a free 45-minute initial consultation, which is considerably longer than what most firms offer. To provide as much certainty as possible, we give clear and accurate advice regarding our preferred approach to your matter, the strengths and weaknesses of your case, and the likelihood of success in litigated matters. We require funds in trust in advance of any work that we do, we take care to match your fees to our cost estimates and we do not charge for every email, brief telephone conversation or small task.
How affordable are your prices?
The affordability of our legal services begins with accurate and reliable cost estimates and efficiency achieved by skilled lawyers working quickly and leveraging technology. Beyond those factors, our hourly rates are competitive with other comparable firms. We have a genuine commitment to providing quality and value, and we work hard to minimise our clients’ expenses by resolving issues and disputes as efficiently and cost-effectively as possible.
What geographical areas do you service?
We service the entire Sydney metropolitan area and we also have regional, interstate and overseas clients. We have offices for face-to-face client conferences in Cronulla, Sydney CBD and Parramatta. However, regardless of your location, we are able to provide our services by telephone and video conferencing, and cloud-based document sharing. We also often conduct face-to-face conferences with clients at their offices or place of business where it is convenient and appropriate to do so.
Do you prefer a particular type of client? Plaintiffs or defendants? Builders or homeowners?
We act for all types of clients and we do not have a preference for any particular type of client. We will act for you and protect your interests with determination and sophistication regardless of whether you are suing someone or being sued.