Question: We’ve discovered that building work carried out on our building in 2017 is not compliant. Who is liable for the costs to rectify the defect?
There are four double-storey units in our complex of 10. In 2017, we replaced the balustrades on the building. A new owner had a building inspection done and discovered the work doesn’t meet Australian Standards. The balustrades are 5cm short of the required height.
Our strata management thinks the owners corporation should pay for rectifying the defect. Should this breach be the responsibility of the builder? Is our strata management liable for signing off on incorrect building standards?
Answer: This depends on whether a claim for breaches of the statutory warranties was made against the original builder and/or developer under relevant legislation.
This depends on whether a claim for breaches of the statutory warranties under the Home Building Act 1989 or a similar claim was made against the original builder and/or developer under other relevant legislation, such as the Design and Building Practitioners Act 2020.
If it was the case and brought within the statutory time limitation period, the builder and developer ought to be held responsible. If this is not the subject of a claim, the owners corporation would have entered into a contract or scope of works with the contractor.
That scope of works should be reviewed at first instance to ensure it was complied with and there was no breach by the contractor. This is an owners corporation responsibility. Whether the strata is responsible will be how the works were approved by the owners corporation at first instance, with meetings being held and resolutions passed unless the strata manager had a power of delegation under the strata managing agency agreement.
Liability limited by a scheme approved under Professional Standards Legislation.
This post appears in the October 2023 edition of The NSW Strata Magazine.
Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486