WE ARE THE ONLY CONSUMER ORGANIZATION IN AUSTRALIA REPRESENTING THE INTERESTS OF ALL BUILDING CONSUMERS
Consumers who attempt to build, extend, renovate or do repairs are totally unprotected and we can prove that this has been the case for the last 23 years. Many independent inquiries have confirmed this fact, but no government will listen or act to stop what is essentially ‘legalized’ building fraud. Just read some of the stories of those whose lives have been ruined, Then come join us and be part of bringing about genuine change.
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(((Re-posted article with new heading after 70 total views... our apologies.)))
BUILDERS ARE PARTLY OR WHOLLY LIABLE FOR NEGLIGENCE IF…
Detriment occurs as a result of your failing to exercise sufficient care and expertise… and as a result fail to perform one or more of your duties to a professional level of competence in accordance with:-
• Current Australian Standards & Codes,
• Current Building Regulations,
• Current Safety Regulations,
• The Building Contract,
• The Specification, and
• The Permit Documents.
Being a Builder (Unlimited) is a very responsible job.
And being a competent builder deserves considerable respect.
Builders have a contract directly with the home owners and are first stop for disputes about defects built into the home at completion. Unfortunately DBDRV has been formed to try to make the dispute go away basically (expedited).
But liability is not always fully the fault of the builder and could be shared via the Proportionate Liability Act.
Builders can join parties with other players in the documentation stage through to completion stage of every project for their part in the detriment caused.
BUILDERS MAY NOT REALISE THOUGH…
That there are several more responsibilities of a Builder (Unlimited)… in the form of unwritten, (but nonetheless implied) warranties, which go hand-in-hand with constructing a dwelling or adding onto a dwelling, (or apartment tower for that matter).
A failure to comply with these other warranties (implied but not stated in the standard building contracts of the HIA and MBA), can result in your new homes, units and additions being built to a poor (unacceptable) standard… and will then be a breach of the important builder’s duty of building every component and system incorporated into the home, well enough to be likely to reach their reasonable life expectancies.
This involves another (unwritten) implied warranty… that every component and system incorporated into the home complies with minimum requirements of manufacturers.
One more implied warranty is that expert judgement employed to permit a performance solution (previously called an alternative solution); and used in the new home, unit or additions project, must actually be expert… and the time factor invariably applies to each and every one of these.
These failures to comply with implied warranties often result in defects and/or latent defects… and they do not have to fail during the warranty period.
So permitting them to be built into new homes, units and additions is the result of a failure of a duty of care, and often due to inadequate (or virtually no) supervision.
How else could dozens of defects be built into the average new home to the tune of $25 000 average to rectify them (as distinct from band-aiding them)?
As our previous article states…
IT IS TIME TO CHANGE…
And it is therefore time to expend a lot more effort on quality supervision.
Unfortunately, specifications are so bereft of detailed workmanship clauses, that general dumbing-down of the entire residential building industry has already progressed a long way over the last 33 years since these clauses were progressively removed. A new standard is required urgently.
But ignorance is no excuse (as they say).
Perhaps the BUILDING FORUM we suggested in our earlier article could include hand-outs to builders on every trade, explaining just what detailed work is required for a job to be considered workmanlike.
Perhaps that document could be made public too… for the sake of our building stock into the future.
VBAG attempting to keep interested building connedsumers well informed.
VBAG ESTIMATES THAT THE COSTS ASSOCIATED WITH THE TRIPARTITE OF CASES - SOFTLEYS VS METRICON HOMES EXCEEDED $3 MILLION ALL UP.
We wonder if the Australian Residential Building Industry sees the opportunity handed to it by the recent Softleys v Metricon Homes dispute… or will there need to be more and more expensive cases.
We now have a precedent which adds fairness to decrepit home claims... compared with the previous Bellgrove v Eldridge precedent (which most people see as what you miss out on with a warranty).
We think that it would be really worth the effort right now…
If builders alter their thinking and realize that it might actually pay to attempt to be reasonable in their disputes with determined home owners whose houses (and dreams) have been shattered… instead of paying a fortune to solicitors, barristers and ‘so-called’ experts ($3 Billion annually in Victoria alone in 2013… FOR EACH SIDE of the home owners vs builders equation… although we only heard of the costs to home owners).
Perhaps now would be a good time for the HIA and MBA to put a halt to shoddy workmanship once and for all… and demand a FORUM for all of their members with a view to ending the almost universal approach of builders bluffing home owners… and giving as little as possible every step of the way.
The builder associations could make a genuine effort to raise the not-so-good reputation of builders to what it was pre-1994 (when privatization and domestic building warranty insurance seemed to give carte-blanche to every Tom, Dick and Harry who wanted to be a builder; and did absolutely nothing to de-register those repeat-offender-builders charged in VCAT with gross workmanship).
Gross workmanship means that the tradesmen are either awful at their jobs… or willing to cheat because they can get their own back for being screwed down in wages (by virtue of the almost non-existent supervision)… or both.
And it means that the Building Supervisors were virtually not supervising their new homes, units and additions projects at all.
Even though the results of past VCAT disputes were only pyrrhic victories by the home owners (because of the abysmal expertise of their building consultants), the expenditure of a total of $6 Billion annually really warranted a total Victorian government audit. This never happened… and we know why…
Business is a protected species… even if playing hard-ball is more costly. The upper hand seems to be more important to businesses than being reasonable
Instead the Victorian Government has decided to get much tougher… creating DBDRV… a head-banging forum similar to VCAT Compulsory Conferences, by far the main aim of which is to EXPEDITE the disputes. Those in charge (as in VCAT) do not have an official definition of defect (and seem not to care); merely attempting to pressure both sides (mainly the owners) into submission.
And so we end up with the accrual of an average (per new home) of $25 000 worth of defects left to cause havoc, because in the expediting process of DBDRV, the few agreed items (only agreed to because the builders can band-aid them cheaply by treating the symptoms), does nothing to remove the actual causes of early failure (the defects). Often, such failures have already been band-aided earlier in the warranty period.
If the aforementioned BUILDER FORUM could convince builders (particularly the volume builders; that paying solicitors, barristers and so-called experts to bluff and fight for them in VCAT, is actually overall considerably more expensive than employing more building supervisors to ensure that the defects are not built into the homes as they build.
The lack of quality supervision caused by over-worked supervisors is by far the main cause of $’000 worth of defects being built into virtually every new home.
The overall result will be far greater confidence in builders… and the quality of homes will improve dramatically… surely being a WIN-WIN situation.
Merely band-aiding symptoms to get over the 6 year warranty period line just has to stop.
VBAG attempting to keep building connedsumers well informed.
WHY IS IT THAT RELEVANT BUILDING SURVEYORS, CERTIFYING BUILDING INSPECTORS, SOIL ENGINEERS, STRUCTURAL ENGINEERS, TRADESMEN, SOLICITORS, BARRISTERS & STAGE CONSTRUCTION BUILDING CONSULTANTS GET OFF SCOT-FREE WHEN A BUILDER LOSES IN VCAT, THE SUPREME COURT AND THE HIGH COURT?
Is it the hidden cronyism between builders and their Structural Engineers, Soil Engineers, Documenters and Relevant Building Surveyors… which cooked up the cheapening measures that started with an inadmissible method being used by a soil engineer to ascertain a lower classification than actually existed on site?
Or is it the deterrent value of Common Law via the Proportionate Liability Act?
Or is it the Australian Government (and therefore the Building Authorities)… hell bent on protecting business at the expense of home owners?
Or is it the likelihood of that builder becoming Scumbag No. 1if he joins parties with all of the other people who were also (at least) partly responsible for the outcome of the unstable waffle-pod based home?
OR COULD IT BE ALL OF THE ABOVE?
We will be exploring the likelihood of negligence of each of the above players who (VBAG says) had a hand in each of the disaster homes built in (at least) the outer northwest and western volcanic plains of Melbourne. (Manufacturers and Marketers for overseas materials may also be part of the equation for flammable cladding... although international relations may be strained by joining them).
We would also like to see proof that Metricon Builders actually paid out of their pocket, for the disastrous result of the Softleys case in VCAT, Supreme Court… and finally the High Court… to allay fears of the conspiracy theory… that the powers-that-be are all in it together at the expense of building consumers…
After all, the powers-that-be and the governments seem to have done absolutely nothing to stem the rapid drop in the quality of new homes built since 1994... And have hidden the results of the puny audits carried out by the building authorities.
Is there any truth in the rumour that Metricon Homes were partly funded to fight the case all the way to the High Court… because their backers thought that the Bellgrove vs Eldridge 1954 High Court precedent would hold firm for the sake of poor quality builders... particularly volume builders.
And the current bluffing / fighting / band-aiding regime used by repeat-offender builders against home owners could continue unabated.
Well it didn’t work…
So from now on, all builders of disastrous homes (not just Metricon Homes), run the high risk of being sued for re-builds of thousands of waffle-pod slab homes just in Victoria.
The new precedent has shifted the goal posts towards fairness to consumers.
THAT WAS JUST NOT SUPPOSED TO HAPPEN.
We wonder if the Metricon solicitors used along the way, will pay the costs for having advised Metricon Homes to fight the Softleys every step of the way? And who were these 'heroes' who were prepared to fight the beleaguered home owners?
VBAG trying to keep interested building connedsumers well informed.
.............COMING SOON --- A COMPLETELY NEW SERIES..............
...................THE HAZE SURROUNDING NEGLIGENCE..............
Negligence is a legal matter... but is a fairly simple concept to grasp when you give it a bit of thought. Basically...
A person is negligent when he/she fails to perform his/her duty of care and is liable for that negligence if detriment is caused by that lack of care..
A registered building practitioner is negligent when he/she fails to perform his/her duty to a minimum standard.
Soon to come will be a series of articles asking why each person or company involved with the process of construction of new homes, units and additions, should not be considered guilty of negligence if they failed in certain of their duties involved with what turned out to be thousands of decrepit waffle-pod slab homes.
The same would equally apply to many other houses such as lemons, partial collapses of portions of houses such as trussed roofs... and for apartment owners... the use of highly flammable cladding which places those apartment owners at risk, contrary to the National Construction Code and basic fire safety standards.
THE FATAL WORDS (PART 2)
Once you’ve weeded out the Pretender Building Consultants via the questions in the first article… (The Fatal Words… I’ve Already Signed Up My Building Inspector)...
We suggest that you ask these follow-up questions:-
1. Is the Building Consultant insured for the building inspection and report? (If so, what are the insurer’s policy disclaimers… disclaimers such as: “The Building Consultant is not covered for damage done by termites / framing not visible / heave / water damage not visible”).
2. Has the Building Consultant cover for public liability to $1 Million?
3. Is the Building Consultant a Registered Building Practitioner? (not always sufficient safeguard of expertise particularly with incorrectly registered builders and architects who did not do building construction or building science).
4. Does the Building Consultant carry out the inspection in accordance with the access rules of the Code for Domestic Building Inspections (our name for the code) AS 1439.1. (If so… ALARM BELLS SHOULD SOUND… because that person has somehow managed to slip through the safeguards of the first article on this subject… and will not be walking around on and in the roof or getting under the house, because the code precludes those activities… because it was written by employers who did not wish to be disadvantaged by the fact that Sole-Traders are not bound by limited access rules as are employees).
5. What actual experience does the Building Consultant have and what is their actual qualification?... and of course...
6. How long does the inspection take (and how much is the cost of the report... if you haven't already asked that first)
And make sure that they have told you if they are looking for breaches of manufacturers’ minimum requirements and likely longevity of each element of the building.
In our opinion, not many have a sufficient definition of defect to be looking at any house built since privatization began in 1994.
Previous articles spell out some of (including the the most common of) the defects that 95% of building consultants MISS on newer houses (based on 121 follow-up reports by another building consultant... in a row)... revealing this sorry gross deficiency).
There are more like 100 defect items that the vast majority of Building Consultants MISS in houses that can best be described as ‘lemons’... many of them structural defects.
VBAG attempting to keep building connedsumers well informed.
