Almost always, a builder must be a given a reasonable opportunity to complete their own work or to rectify any defects within their works, before any further steps can be taken by an owner to have the work done by others.
Most standard form building contracts used within the building industry contain specific steps which must be followed by both owners and builders if an owner is unhappy with a builder’s work.
Failing to follow these steps can put owners in breach of the contract and unable to claim the costs of repairs, or even worse, liable to pay the builder financial compensation for the breach.
Section 18B of the Home Building Act 1989 (NSW) implies certain warranties into every residential building contract. Amongst those, are warranties that a builder will perform work with due care and skill and in accordance with the plans and specifications set out in the contract, and also that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time.
Section 18BA Home Building Act 1989 (NSW) then provides, in turn, certain obligations on the builder’s client. One such important obligation is, that in the case of a builder breaching warranties as to workmanship or timeliness, that the client may not unreasonably refuse the builder access needed to rectify that breach.
The question of what is unreasonable will depend on all of the circumstances of the particular case, and where an owner hires another builder, and the dispute comes before a Court or Tribunal, it will be for the owner to prove that the builder was given every reasonable opportunity to complete the works and rectify any defects, and that they were unwilling to do so.
There are however, some circumstances in which you may get another builder to complete or rectify work. One such circumstance is where the builder is given the opportunity to rectify defects or complete works in accordance with the contract, but the builder continues to refuse to repair or complete. Another such circumstance is where the relationship between the owner and builder is in such a deteriorated state that it is unworkable or, that because of a builder’s past performance on site, there is a complete lack of confidence by an owner in the builder’s ability.
Owners should be extremely cautious before deciding to get one builder to finish another’s incomplete or defective work, as even if you are successful in your claim against the original builder, the damages awarded may well be inadequate to cover the cost of the subsequent builder.
If you’re considering getting a new builder to complete work or rectify defects of an earlier builder, it is better to be safe and to first seek the advice of an experienced construction specialist lawyer to assess the merits of your individual situation.
