Time permitting, it is always wise for a litigant to “get its ducks in a row” before instigating past the point of no return and commencing legal proceedings.
Sometimes time is of the essence. For example, the 2 year limitation period may be about to expire and proceedings need to be commenced urgently to preserve recovery rights.
In other cases, signs of defective work have started to appear well before the looming 2 year limitation period will take effect. Water penetration is often one such issue, water staining, bubbling of paint, mould, etc. starts to appear and experts are called in to investigate.
However, not all defects do, or will, exhibit signs of damage. An example of this being fire safety defects. Fire safety defects are different to other defects in the sense that they do not result in damage per se but result in a safety risk. The defects increase the risk that if there is a fire, it will not be contained and occupants in other lots may be injured or will die, and the extent of the fire damage will be much greater than what it should have been had the defects not been present.
When defects start to appear in a building I recommend that one of the first steps is to obtain as many relevant documents as possible. Obtaining the relevant documents will assist the experts in finding the defect, assessing why the defect occurred, how it may be rectified and whether it has been replicated in other parts of the building. Read about the two types of building defects in strata buildings
The documents obtained may also be used by the solicitor to provide advice in relation to who is liable for the defects, whether the defects are major or non-major defects, and what evidence may be required should legal proceedings be necessary.
In the case of an owners corporation, Section 16 of the Strata Schemes Management Act 2015 provides that the developer must deliver to the owners corporation certain documents not later than 48 hours before the first annual general meeting. The documents which must be delivered include:
- all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel,
- without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979), fire safety certificates and warranties relating to the parcel or any building, plant or equipment on the parcel,
- the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme,
- the initial maintenance schedule,
- any interim report or final report of a building inspector prepared under Part 11 and relating to any building on the parcel,
Some of these documents are very helpful, and in fact may be critical, when making a claim for building defects. Construction plans, specifications, occupation certificates and “as built” drawings are documents which are particularly important.
In addition to the documents referred to above, there are usually other documents in existence which will assist the experts. The documents required will depend upon the type of defect however, by way of an example, some usual documents which provide assistance include:
- The building contract.
- Variations to the works.
- Engineering reports obtained by the builder and developer.
- Engineering drawings, in particular structural, hydraulic and mechanical ventilation drawings.
- “Shop drawings” prepared by suppliers and sub-contractors.
- Reports from fire engineers, in particular any “alternative solutions” reports.
Sometimes, for some reason, the documents referred to above are not provided or they have been lost or misplaced due to changes in strata managers, etc. When this occurs steps may need to be taken to obtain documents from other sources, the primary source for additional documents is usually the local council as there are processes in place to obtain those documents however the documents which may be obtained from council’s is usually quite limited and, for example, it would be unusual for a council to have a copy of the “as built” drawings.
In my experience most builders and developers do not respond diligently to a request for documents and, Section 16 aside, it may be difficult obtaining documents from them voluntary. There are strategies for dealing with this and your solicitor should provide advice in relation to this.
If all attempts to obtain documents fail there are legal process which may be invoked once legal proceedings have been commenced. If legal proceedings are commenced in the NSW Civil and Administrative Tribunal, documents may be obtained by making an application for a summons. If legal proceedings are commenced in a court, the court may issue a subpoena. Both processes have their advantages and limitations on what may be sought and when and your solicitor should provide advice in relation to this.
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.
