1. Serious
Building
Defects
And
Disputes
-­‐
And
How
To
Avoid
Them
Webinar,
3
November
2011
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

2. Responsibility
• Who’s
responsible?
• Two
causes
of
defects
1. Design
2. Workmanship
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

3. Why
Bother?
• DeterminaMon
of
proper
defendant
• DeterminaMon
of
cause
of
acMon:
– Statutory
warranMes
– Negligence
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

4. Case
study
-­‐
Balcony
Leaks
• Most
common
defect
• Youtube
–
‘Building
Blox’
video
by
Ross
Taylor
• Demonstrates
tension
between
proper
design
and
workmanship
Why
Balconies
Leak
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

5. New
Approach
by
TEYS
Lawyers
Engage
with
the
builder
as
an
equal
Early
SeTlement
Framework
Facilitate
open,
full
and
frank
Assist
builder
in
without
finding
a
prejudice
soluMon
discussion
with
builder
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

6. New
Approach
by
TEYS
Lawyers
(cont)
PracMcal
soluMon
rather
than
‘Rolls
Royce’
version
from
ambit
claim
Legal
proceedings
are
an
Once
agreement
is
reached,
implied
(rather
than
explicit)
it
is
recorded
in
a
deed
threat
to
incenMvize
builder
(avoiding
liMgaMon)
to
engage
in
process
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

7. Steps
to
New
Approach
Builder
returns
to
site
and
does
minor
Role
of
TEYS
Tone
of
discussions
work
armed
with
a
Lawyers
silicon
gun
Engagement
of
Prototype,
Psychology
of
expert
by
TEYS
Agreement
and
builders
Lawyers
Deed
Expert
then
makes
SensiMvity
to
large
iniMal
contact
with
expert
reports
builder
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

8. Case
Study
1
Background
Outcome
OC
approached
TEYS
Lawyers
for
OC
of
over
200
units
leTer
of
demand
TEYS
Lawyers
advised
need
to
Significant
water
penetraMon
issues
determine
defect
(not
describe
it)
Consultant
engaged
and
invited
OC
independently
retained
expert
builder
to
observe
tesMng.
who
described
defect
but
not
cause
RecMficaMon
work
idenMfied
and
esMmated
at
>$5m
Builder
rejected
content
of
report
Builder
conceded
responsibility
and
ciMng
‘wind-­‐driven’
rain
as
cause
agreed
to
recMfy
Outcome
achieved
in
6
months
–
less
OC
wasted
a
year
in
the
process
than
$10k
in
legal
fees
billed
to
date
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

9. Case
Study
2
Background
Outcome
OC
of
over
100
units
OC
approached
TEYS
Lawyers
Consultant
engaged
and
invited
Significant
defects
affecMng
many
builder
to
observe
tesMng.
units
(cost
esMmate
circa
$10m)
RecMficaMon
categorised
as
type
and
cause
Legal
proceedings
commenced
by
Prototypes
for
recMficaMon
devised
another
law
firm
–
claimed
against
and
agreed
with
builder
HOW
policy
TEYS
Lawyers
disconMnued
Builder
aTempted
recMficaMon,
unnecessary
proceedings.
Deeds
of
was
unable
and
engaged
lawyer
to
seTlement
agreed
with
builder
for
defend
claim
recMficaMon
at
his
cost
On-­‐going
legal
spend
on
liMgaMon
OC
spent
a
year
in
the
process
reduced
to
$nil
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

10. Join
our
next
webinar
Join
us
for
our
next
webinar
at
4.00pm
on
1
December
2011
‘Public
Officials
and
Cer6fiers
–
What’s
Their
Fair
Share
of
the
Liability’
Reserve
your
seat
now
at:
hTps://www3.gotomeeMng.com/
register/900340382
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au

11. About
The
Presenter
Chris
worked
for
many
years
in
leading
commercial
construcMon
law
pracMces
acMng
for
government,
developers
and
contractors
in
disputes
in
the
building,
transport
infrastructure
and
resources
sectors.
He
has
been
involved
in
all
forms
of
dispute
resoluMon
including
liMgaMon,
arbitraMon
and
alternaMve
dispute
resoluMon
in
a
range
of
jurisdicMons
in
Australia.
In
the
last
few
years,
he
has
brought
his
specialist
construcMon
industry
knowledge
to
the
strata
sector
and
now
only
acts
for
owners
corporaMons
in
a
range
of
disputes
in
various
jurisdicMons.
TEYS
Lawyers
pracMce
naMonally
in
strata
Mtle
law
represenMng
owners
corporaMons,
bodies
corporate
and
apartment
owners.
The
firm’s
pracMce
groups
include
building
defects,
management
rights,
strata
community
disputes,
by-­‐laws
and
rules
and
levy
and
fee
collecMon.
Subscribe
for
their
free
e-­‐newsleTer
StrataSpace
and
find
out
more
about
them
at
www.teyslawyers.com.au
©
Copyright
2011
Teys
Lawyers
www.teyslawyers.com.au