In this article I discuss the categorisation of building defects into “systemic” defects and “recurring” defects.
The need to categorise defects as systemic or recurring arises when the same defect is observed in multiple locations throughout a building however, due to time or cost limitations, it is not feasible or practical for each instance of the defect to be inspected individually.
Systemic and recurring defects are quite common in residential strata buildings because the construction of the individual units is repetitive and if an issue is not picked up early in construction process it is replicated over and over again through out the building.
A systemic defect is a defect which has been identified multiple times throughout the building and there has not been any instance of the work having been done correctly.
A recurring defect is a defect which has been identified multiple times throughout the building however although it has been done defectively, there are also instances of the work having been done correctly or adequately.
When systemic defects or recurring defects are identified it is very important to obtain advice from an experienced construction lawyer because there are important factors which need to be considered in order for the evidence to satisfy the onus of proof.
As an example, some of the factors which need to be carefully considered are:
Is it clear why the systemic defect occurred? For example, did the contractor adopt an incorrect methodology? Were the materials not suitable? For example, this is often the cause for systemic waterproofing issues.
What is the extent of the systemic defect? For example, does it affect all bathrooms? If so, why are some instances of the defect demonstrating signs of damage and others not?
How many lots need to be inspected to verify the issue is systemic or recurring?
Is it likely there will be further instances of the defect in parts of the building which are covered up? For example, have fire collars been installed where services penetrate bounding walls in the ceiling space? Are as-built construction drawings available to assess the extent of the systemic defect?
If the defect is a recurring defect, what is the variance between the compliant work and the defective work? How may this be measured or tested to identify the extent of the recurring defect?
Is the scope of rectification work the same for all instances of the defect? For example, is the defective sliding door protected from rain by a large balcony overhead, or will come into contact with wind-driven rain?
Systemic and recurring defects have the capacity to greatly increase the size of a defect claim. For example, if there are 100 lots in a strata building and the bathtub in every lot has been installed incorrectly such that it allows water to penetrate the unit below that issue alone may increase a claim by more than $250,000.
An experienced construction lawyer will be able to work with the expert consultants to ensure that all of the questions above, and other questions, are answered so as to ensure that all instances of systemic and recurring defects are recovered.
The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.