This article aims to briefly discuss some of the points that a would-be building owner needs to consider prior to engaging a building contractor and signing a contract. The list is not meant to be exhaustive and the building owner is strongly recommended to seek legal advice.
Is My Building Contractor Licensed?
It is not unusual that a building owner may be given a few names, or introduced to a few contractors who are said to be builders with qualifications. There is nothing wrong to spend a little money or time to conduct your due diligence to confirm the veracity of the information you receive. This is not to suggest that the information provided is unhelpful or untrue. It simply pays to verify and ensure that any information you receive is current, valid, and qualified for the purpose it is sought. In Queensland, you are able to conduct a search through Queensland Building and Construction Commission or QBCC. The search section in their website called QBCC license search is to be used to search the builder and the company they may be associated with. This is to ensure that the builder you are about to engage is qualified and licensed by QBCC.
My building contractor is licensed, what is next?
Now that you have verified that the building contractor is licensed, the next thing to ensure is to learn what the company’s status is. This is to learn, among other things, when the company was established, who the current directors are, and whether any of the directors named in the company is or was insolvent or disqualified to hold the director position in the current or former company(s). You are able to do this search through the website of the Australian Securities & Investment Commission, commonly known as ASIC. A search of the company’s current extract will show who the current directors of that company are.
How Can I Ensure That The Builder Is Solvent?
You could only do so much at a time to find out if the builder is solvent when you are about to sign a contract with the builder or its company. Let’s call this stage one of the builder’s solvency fact-finding. The ASIC search referred to above will show if the company is officially insolvent (i.e. a liquidator or administrator is or has been appointed). As this only shows the official position, once a company has officially been declared insolvent, it does not give any information regarding potential insolvency. You should research the building company to see if there are any reports or indications that it might be in financial difficulties. However, you are strongly recommended to seek legal advice to find out how you may be able to reasonably protect your interest.
What To Do With A Dispute Over The Quality Of Builder’s Work?
There is something in common law called “duty of care”. In essence, the person who owes this duty to another, whether morally or legally, is obliged to ensure that he/she takes into account the well-being and interest of that other person to whom the duty is owed to. Likewise in this context, the builder owes a duty of care to a building owner or the person who contracted the builder to perform building works, to perform such works to the standard of a reasonably competent builder. What is reasonable is a question of fact and turns on its own merit. The duty raised here will be breached if the builder fails to ensure that the building or repair works carried out were not performed in a workmanlike and competent manner. The question that needs to be answered when the quality of works performed is in dispute is to identify first whether the defective work is structural or non-structural.
Any time limits to bring in structural or non-structural defect claims?
In Queensland, the QBCC provides that a structural claim must be made within 6 years and 6 months from the date (whichever is earlier) of paying the insurance premium on a property, entering into a contract, or work starting. Non-structural defects claim must be made when you become aware of the defect within 6 months after the day the work is completed in which case you need to lodge the claim within 7 months of the day the work is completed.
Can My Builder Vary The Contract That We Already Agreed?
This question is better answered if we consider whether the variations have been agreed between the builder and the building owner in writing and whether the variations to the contract complies with section 40 of Schedule 1B of the Queensland Building and Construction Commission Act (the Act). The gist of the section is that the building contractor must give the building owner a copy of the variation in writing before the first of the following happens; (a) 5 days elapse from the day the building contractor and the building owner agree to the variation; and (b) any domestic building work the subject of the variation starts. Section 40(5) of Schedule 1B to the Act also states that, the building contractor must not start to carry out any domestic building work the subject of the variation before the building owner agrees to the variation in writing.
For advice or assistance with all building contract disputes, contact the Litigation Law Team at Aylward Game Solicitors today on 1800 217 217
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Article Source: Contractor Engaged
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