Building Diputes Tribunal

[Mr_FJ]

Hi Guys,

I'm after some advice from anyone that has been in the same situation.

I have a case currently running with the Building Disputes Tribunal regarding some works that need to be done which I believe falls under warranty. Its a bit of a messy situation with my place, I bought it brand new never having been lived in through a realestate agent, so we didn't actually build it ourselves through the builder. The building company that built the house has since ceased trading, but I do have the contact details of the person that was the registered builder for the house.

I have had the assessor out to my house along with the registered builder and have had the report back as to what the BDT determined should be rectified by the builder.

Naturally the builder has disputed some of the findings (which of course he is entitled to do so... and I wouldn't have expected anything less) and I too have disputed some of the findings as i dont believe the assesment was done satisfactorily and thorough enough. Also some of the findings where contradictory and others (even being in my favour) wont rectify the problems going by the assessors recomendations.

It is at the stage now where the matter has been reffered to a hearing which is due in either March or April (date yet to be set).

I am curious if anyone has been in the same situation. What can I expect at the hearing ? Should I seek legal advice and should I have a Lawyer present at the hearing ? Can anyone recomend one that handles this sort of thing ???

I want to be armed with as much information as possible as I can see this getting messy.

Thanks

Mr FJ

[WIGARUS]

I have spent a fair bit of time at these. A lawyer will be an entire waste of money. If you have only had the BDT inspector inspect the property, then i would definitely get a third party to inspect and do up a report. Get some quotes prepared on what will be required to bring the house up to a reasonable standard. do not ask them to quote for anything other than to bring it up to a reasonable standard, if your quote includes anything that resembles betterment then it will usually be dismissed.

Have you contacted the builder directly to try and have work done? because the more you can show that you have allowed reasonable access, the more likely you are to have things go in your favour.

if you are asking for an order to pay, don't claim for anything apart from what it would cost you to fix, the BDT doesn't have the power to pay you for anything more than what it would reasonably cost you to complete the work. ie: you can't claim loss of work or phone calls etc.

In the hearing, you will sit at a long table with the council members on one side of the table, and you and the builder on the other. across from you the councillors will sit, there will be a builder member, a glorified lawyer and a consumer protection member.

it is extremely informal. the lawyer will be a waste of time because the board members are morons. in my experience, if you scream, or cry, or throw a tantrem, you will greatly improve your chances. I've been in the situation where the owner has presented new evidence on the 2nd day of a hearing and the tribunal has still heard the evidence and not given the builder the opportunity to view the evidence.

the inspectors the bdt have are for the most part useless. check what the registration number is. my old man got his rego well over 20 years ago and his is around 9000. most of the inspectors i'v had to deal with have a number lower than that so they were given a registration a LONG time ago (even though they are still the final word on building a house today).

what sort of problems are there at your place?

[Mr_FJ]

Thanks for the reply Wigarus.

The company that originally did the work, or at least I presume did the work as all the house plans have their name on them, haven't traded for about 4 or so years. I did find out that they had changed their name and were trading under a different name but was not able to find any contact details for them and the ones that I did have were all out of date, address, phone numbers, web address, email address etc and I wasn't able to contact them or locate them.

The BRB had the same details as I did. The next company that they traded as was a similar story and this is the company that hired the registered builder of which was contracted to build the house and whom I have lodged the complaint with, mainly because he is the only contact that I have that has had anything to do with the house. I went for a good 6 months of searching between the local council, BRB, BDT and back again before I eventually found someone at the council who was good enough to help me and provided me with some answers.

One problem I see happening is that the registered builder that I have lodged the complaint with is going to say that some of the works are out side of the scope of the contract that he was working to. To some point I can sympathise with him on this as I gather that he has been shafted by the building company as well, however that is not my fault, nor my problem. I am a little concerned though that I will have to go through this whole rigmarole again if they find that he is not accountable for some of the works.

Something that may possibly go in my favour though is that it looks like the contract that was between him and the building company was never finalised and never signed off by the building company only him. I guess legally this means that the contract was never fulfilled and is still outstanding.

In terms of problems that I have, there are four



1) Problem: Media Room. Leak in Roof which has dripped onto roof insulation and caused water damage and mold stains to occur on ceiling.
a. Redress: A check of the area, and if need be, resealing of the area where the leak is coming from. Repair of the ceiling in the media room where the water damage has occurred.

The builder originally was happy to repair the visible damage that could be seen from within the media room, which I was somewhat happy with, but he is now refusing to do saying that, in his experience it would not have taken 4 or so years to become evident.

I remember hearing stories about cool and cosy insulation (I don't have this I just have normal bats) where peoples roofs had leaked over a period of time and the insulation soaked up and retained the water causing the ceiling to collapse. I know its not exactly the same situation as mine but I can see exactly how it could potentially take a while to show up. As far as I could tell the water leak was never a very fast leak and I'm guessing that the bats absorbed the majority of the water. It wasn't until I got in the roof and moved the bats that I saw that part of the ceiling was being eroded away and that the mold had started.



2) Problem: 2nd Bathroom. Water leak from plumbing underneath the basin in the cupboard area has caused water damage to occur. The wood has swollen due to this and the area is all moldy and has a moldy smell.
a. Redress: Repair and or replacement of the area where the water damage, swelling and mold has occurred.

The report that came back from the inspection said that it was evident that water damage had occurred and it suggests that water had been leaking from the underside of the vanity basin from the PVC piping.

He then goes on to say that without a destructive examination he was not able to determine the source of the water leak. As a result no action is recommended.

What the.... He just contradicted himself !
To me this one is a bit of a no brainer.



3) Problem: 2nd Bathroom. Shower door opens the wrong way according to the original plans and is awkward and unsafe.
a. Redress: Shower door to be installed as it should have been according to the plans.

This one is not in dispute however even though the builder has been informed to rectify this he has not been in contact to do so.

I rang the BDT today about this to find out what was going on as I hadn't heard anything from the builder and they now tell me that this has to wait until the hearing which I didn't think should be the case. Its not in dispute and has not been reffed to a hearing, he has been ordered to fix it so should get someone to do the job regardless of when the hearing is. The BDT seem to circumvent their own processes???



4) Problem: Sides and Rear of House. Inadequate water drainage around the outside of the house. Soak wells do not cope with the rainfall and flooding occurs.
a. Redress: Due to some landscaping work that I had done I found that in the area that was being worked on there were an insufficient number of soak wells installed and several downpipes flowing into one soak well. As I have no plans and am unable to obtain any plans of what was installed, I suspect that this has occurred around the house. If no plans can be provided I would like an inspection done around the area and if need be adequate drainage to be installed.

The assessor found this one to be in my favour however when he was doing the assessment he went around the house measuring the fall of the paving away from the house which is fine. the problem being is that the block is small, the house is big, the paving goes right up to the retaining walls on all sides and the water has nowhere to run off too other than next door which I dont think is acceptable. i certainly dont want to be liable for repairs to their property because of water coming from my block. As I mentioned to the assessor the problem was that their was inadequate drainage in the way of 4 downpipes (one whole side of the house) that was going into 1, 600x600 concrete soakwell. Now im no rocket scientist but common sense would tell you that just by looking at the surface area of that side of the house that this is nowhere near enough in terms of capacity. To alleviat the problem, I installed 3 more soakwells myself. This was something that couldn't wait. I am not seeking payment for that but my concern is that because I am still having slight problems with flooding even after this and can see that a couple of the downpipes around the back of the house still over flow (I hadn't touched these ones) that there is inadequate drainage their too or something is wrong with the soakwells, if there are any. I dont have building plans for any of that work so without ripping up all the paving and checking whats going on I have no way of knowing.

Sorry to be a little long winded with this but this is all of it. One last thing that annoys me a little is that the builder continues to harp on about the time it took me to react to lodging a claim or getting in touch with him. I didn't even know there was a process for this sort of thing (1st time having bought a new house) and it wasn't until someone in the building game mentioned it to me that I started looking. The other was that because the bloody builders kept changing their name and I couldn't get any information out of anyone because of the so called 'privacy act' I could never find out who was responsible. Of course you don't find this information unless you specifically ask the right questions to the right people which is another delay and are continually chasing your tail.

Mr FJ

[Johnno]

None of those are major and sounds like it would just be easier to start on it yourself.
Chasing builders is hard enough when their still operating under the same name.

Goodluck with your case.

[WIGARUS]

What type of roof cover? tiles or tin? if it is a tiled roof, and the leak has happened at least a year after the house was handed over (a full set of seasons), then i wouldn't expect the builder to have to pay for it, the roof was obviously watertight for about 3 years, tiled roofs have a tendency for cracking and leaking. If its steel roof cover, then i would check to make sure that your valleys and gutters etc. aren't full of leaves or whatever. I'd also check plumbng in the roof, sometimes water pipes are brought in through the roof.

what you're describing sounds pretty unlikely to be a slow leak being soaked up by insulation.

did you buy this house just recently? or have you only just bought it? because you need to give the builder a reasonable amount of notice for any problems that need fixing. in this case, for the cabinet to have mould in it i'd say you have left it too late (obviously i don't know what the situation between you and the builder is, as far as being able to get in contact, so i am making assumptions). i would expect that the builder gets ordered to remedy the leak, but might get away with not having to fix the cabbinet. if you've only just bought the house, and the previous owner didn't notify the builder, then i don't think you'll have much luck.

i think you'll find, even with your limited exposure to the BDT, that the whole thing is a joke. They regularly refer to bogus standards (read: nonexistent) on inspection reports and treat the building code of Australia as open to interpretation. as to whether the builder has to fix the shower before the hearing or after, it depends entirely upon the chairperson you get!

The last 2 fall under contractual disputes as opposed to workmanship disputes. if the contract was signed 4-5 years ago, then you should check what type of contract you have. Master builders association contracts from that 'era' are usually only for buildings between 5 and 200K, which means that the building disputes tribunal has no jurisdiction on contractual disputes if the contract value is over 200k. just thowing it out there.

[WIGARUS]

also, what Johnno said i can put you in touch with someone to fix your ceilings / roof. I'd probably just have a crack. It wouldn't surprise me in the slightest if the tribunal intentionally put hearings back in the hope that the clients just give up. nowadays, it doesn't matter what the dispute is about, they organise a directions hearing, which takes an hour, where you are supposed to talk nicely to each other and hopefully everything works itself out all it means is they have an extra few months up there sleeve before they need to have a hearing.

[WIGARUS]

oh, also if you are planning on doing it yourself and still want to chase the builder, then pay someone else to do it and make sure you get a receipt. you cannot make a claim for your own time at the bdt unless that is your profession...

like i said, the place is a joke, i have seen rulings for and against the builder, for the exact same circumstance, just with different chairpersons and it happens regularly. there are published results on the internet for cases where the builder has requested a written explanation for the tribunals decision.

[shmoo]

did you not get a building inspection before buying the house?

anyway, I'm inclined to agree with the others, cut your losses and get the work done and just deal with the cost. Get the house up to standard and then worry about chasing the builder/contractors if you can be arsed.

[Mr_FJ]

Yeh, I hear what you guys are saying.

The only reason I hadn't fully repaired anything, other than stopping the initial problem from getting any worse was that I had been caught out with that sort of thing before and not been able to recoupe the costs. I figured it was better to stop the problem and leave the evidence so that they could see it with their own eyes rather than get it fixed and try and prove it was there in the first place

The roof is tin. I only noticed the leak once the staining and mold started. As I said, once I got into the roof and move some things around I could see roughly where it was coming from. There is an airvent right above it and it appears that the water was leaking past the silicone around the plate that holds the vent and covers the hole where they put it through the tin roof. It wasn't all that obvious exactly where it was getting through but I resealed it and it stopped. I really dont know how long it was there for before I noticed it. All I know is that after I moved everything annd after a heavy downpour I could hear 1 drip about every second hitting the ceiling.

We have had the house since late 2004. The problem that I had with the cabinet wasn't really detected straight away as it was in the 2nd bathroom and I never go in there. The little one uses that bath room and never said anything. It wasnt until I went in there one day and it smelt odd that i started looking around and found that the connections weren't tight. The smell was the mold that had festered in the darkness.

You may be right about leaving it too late, however not having anyone to contact in the first place because they keep deregistering and starting up as another company and no one being able to give me any details didnt help things. It just dragged on and on until I finally had someone to call. I had to laugh when he said "how come it took you so long to contact someone".

From memory we did get a building inspection done. The house itself is built to quite a high standard and in the big scheme of things these are only minor issues with the exception of maybe the flooding in the outside areas. I dont know what sort of implications this has with water getting to the bricked areas of the house if this can cause problems with the foundations or not.

I think it is more the pricinple of the thing now. In my eyes the builder should take ownership of a problem rather than just fob it off. Of couse they do it because they dont want to have to pay out more money, thats all it comes down to really. I just have to weigh up whether it is worth the time and pain involved in chasing it. Usually when I get a bee in my bonnet i set myself a target and go for it even if I find out down the track that I am wrong, I still dont conceed defeat. which could potentially become costly.

The advise so far has been valuable and gives me a few things to think about anyway.