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CONSTRUCTION LAW​

Our Construction and Building Lawyers have expertise in a wide range of matters in the building industry. Our Lawyers assist land owners, builders, project managers, and others, avoid running into, or resolve, any legal disputes.

My business needs advice and assistance with building contract.

I have a building dispute, what are my options?

I need help with security of payment advice and claims.

My company needs help with preparing tender documentation and negotiations.

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Building & Construction Law

We specialise in all facets of building and construction law with particular expertise in advising on construction projects in all forms, sizes, and complexities. Our objective is to minimise risk, create clarity, and deliver commercial outcomes for our clients.

 

Our construction and infrastructure lawyers are industry experts who understand the market and the drivers that determine successful project outcomes. Whilst specialising in both ‘front-end’ (projects) and ‘back-end’ (dispute resolution) in building and construction law, our dedicated team of lawyers provide clients with accurate, and innovative solutions in a timely manner and represent clients in complex building and construction litigation.

 

Our services include but are not limited to:

  • Pre-Contractual Advice;
  • Building Contract Review & Advice;
  • Preparing all Forms & Documents of Building Contract;
  • Contract Administration;
  • Tenders & Project Documentation;
  • Building Regulatory Compliance;
  • Defective Building Work & Warranty Claims;
  • Security of Payment Advice;
  • Insurance Law;
  • Risk Management & Strategic Project Planning;
  • Commercial & Residential Building Disputes; and
  • Disputes – Mediation, Arbitration & Litigation.

Contract Review & Advice

Our Building and Construction Lawyers have strong insight into domestic building law, building contracts in Victoria, building disputes about defects, and other matters involving project disputes.

 

Building contracts can be complex depending on the project, and proper consideration by qualified lawyers is important to prevent a loss time and money to rectify matters which could have otherwise been avoided.

 

We can advise you of your rights and obligations under the building contract and, if appropriate, propose amendments (such as if there are unfair terms). We can also assist to negotiate amendments to terms on your behalf (including the addition of any special conditions).

 

In particular, our contractual review process includes preliminary or pre-contract document review and advice in relation to the Housing Industry Association (HIA), Domestic Building Contract, and the Master Builders Association (MBA) domestic building contract. Our review includes:

  • Advising of commencement and completion date;
  • Assessment of payment terms;
  • Liquidated damages provisions;
  • Checking building registrations;
  • Insurance;
  • Permits;
  • Appointment of a building surveyor;
  • Terminating the building contract; and
  • Application of any ‘cooling off’ period.

 

We assist clients drafting the building contract from the beginning, or otherwise modify an existing building contract to cater for particular circumstances and objectives.

Contract Administration

Contract administration, also known as contract management, is the management and organisation of tasks that need to be completed by the owners, builders, contractors, and suppliers, during the construction of the project.

 

After signing the contract and securing necessary permits and certificates, Contract Administration also starts simultaneously with the construction phase. This also applies throughout the whole construction process.

 

We assist clients and suggest that all parties involved in the construction phase should be involved in the contract administration to ensure that parties are constantly updated and on the same page while carrying out their respective work, to ensure that any concerns are immediately resolved to avoid disputes.

Tenders & Project Documentation

Businesses and Government agencies use a tender process when procuring goods or services, which in most circumstances involves providing two contracts, the first of which governs the tender itself (tender contract), and the other governing the supply of goods or services (supply contract).

 

Our Building and Construction Lawyers assist clients to ensure that the tender process runs efficiently and smoothly as possible.

 

In particular, we assist clients on the establishment and conduct of the tender processes, including:

  • Advising on the nature of the conduct of the tender process;
  • The preparation of tender and contract documents;
  • Reviewing, advising on, and negotiating contractual arrangements;
  • Providing advice to our clients on their rights and obligations during the performance phase of The contract; and
  • Assisting to avoid and resolve contractual disputes.

Building Regulatory Compliance

In Victoria, the Victorian Building Authority (VBA) is responsible for the regulation and management of building practitioners, plumbers, and building surveyors.

 

A vital role of the VBA is to supervise and monitor the conduct and ability of both registered and listed building practitioners. The VBA ensures compliance with the Building Act 1993 to allow quality, efficient and competitive building works to be conducted in Victoria. The VBA also has the ability to inspect any building works completed, investigate potential breaches and, if required, pursue building practitioners who have breached their obligations to protect not only the owner, but the community at large. This is usually initiated by a complaint made by the home owner.

 

With our extensive experience, we provide both home owners and builders with advice and representation where the VBA or other associations are taking action on your behalf, or against you as a building practitioner, or otherwise attempting to deregister a building practitioner’s licence, or their company’s licence.

Defective Building Works & Warranty Claims

Claims for defective building works and warranty claims can often become both costly and time consuming if the issues cannot be rectified between the parties.

 

Our Building and Construction Lawyers can advise you of your prospects in pursuing or defending against such claims. Our Lawyers also assist clients by negotiating disputes on their behalf to attempt to resolve matters to avoid them going to Court.

 

In particular, we regularly assist home owners, developers, sub-contractors, and builders with their claims regarding commercial building defects. We also assist clients’ dealings with the Victorian Managed Insurance Authority (VMIA) and insurers, in the event that the building practitioner individual or company, is no longer operating, or is bankrupt when the defect arises.

Security of Payment Claims & Advice

The purpose of the Security of Payments Act is to ensure that a party who undertakes construction work is entitled to recover a progress payment in relation to the particular work completed.

 

The person who carried out work under the contract (claimant) can carry out a payment claim to the contractor (respondent). A payment claim is a detailed list of all work, goods, and services provided by the claimant to the respondent, and an amount for the particular work completed. The respondent must respond to the claim by providing the claimant with a payment schedule.

 

If the claimant disputes the payment schedule, they can apply for adjudication conducted by a third-party adjudicator. If the claimant wishes to bypass the adjudication process, they can have the payment schedule matter resolved in the Court directly, which depending on the value of the claim in question, will determine the appropriate Court jurisdiction.

 

With our extensive building and construction experience, our lawyers can assist you by:

  • Making a claim;
  • Applying for adjudication;
  • Defending a claim;
  • Applying to set aside an adjudication determination; and
  • Enforcing an adjudication determination or judgment.

Insurance Law

In Victoria, any domestic/residential property that you own that is less than three (3) stories high, during the first six (6) years after completion, or where works were undertaken, are usually insured for defective or incomplete works. Home warranty claims can typically be made against builders (who are not insolvent) for defective work during this (6) year period.

 

Builders are able to make a claim pursuant to their contract for works being undertaken by a contractor that voids the warranty on a product, or where retaining walls have collapsed, or works have been damaged.

 

If the building works you have received are substandard, we can assist home owners to seek and obtain available remedies to help rectify the defects, and or, to pursue an appropriate amount of compensation for any loss and damage.

 

As insurers can be difficult to deal with, if you have a matter involving an insurance claim against your builder’s warranty insurance, we can assist. Our Building and Construction Lawyers can also assist if a claim has been approved, which you dispute, or if the claim was denied partially, or completely.

 

If you are covered by insurance and do nothing, your period of coverage may expire. If a decision is issued, and you fail to act within the statutory period to appeal that decision, you may not be eligible to receive compensation. Accordingly, as immediate action may be necessary, we suggest that you contact us as soon as you identify any defective or incomplete works.

 

Our Building and Construction Lawyers can assist you with reviewing your potential insurance claim, the insurer’s decision, or advise you on the strengths and weaknesses of your claim, to protect your interests and pursue a favourable outcome.

Risk Management & Strategic Project Planning

It is important for clients to be aware from the outset that each particular project includes risks and challenges that must be adequately managed to avoid unforeseen costs and in some circumstances, fines. We review each clients’ contract and determine their potential risks, before developing an approach which not only satisfies and achieves their commercial goals, but limits any risks to their objectives.

 

Risk management is an essential element in tackling risks in all aspects of the project, from suppliers to service providers and time management, that our clients will experience in their particular project. By being aware of the potential and associated risks of the project, and adequately preparing for them, our clients can reduce the realisation of those risks, or their impact and associated consequences if they were to occur.

Disputes – Mediation, Arbitration & Litigation

Our Building and Construction Lawyers work alongside our clients to avoid developing disputes. However, disputes often arise if the project is not adequately planned, and depending on the particular circumstances, negotiating may not resolve the dispute, which then requires a different approach to the resolution of the dispute by (for example) mediation, adjudication, arbitration, or litigation.

 

Our Building and Construction Lawyers assist their clients by:

  • Advising Owners and Builders of their obligations under their respective building contracts;
  • Negotiating with builders in relation to any building defects;
  • Acting in contractual disputes;
  • Assisting in resolving disputes with builders either with Consumer Affairs, Victorian Building Authority or the Victorian Civil and Administrative Tribunal (VCAT);
  • Issuing or defending proceedings at VCAT or Court litigation; and
  • Liaising with experts for reports and witness statements.

 

Whilst initial attempts should always be made to resolve clients’ disputes without going to Court, if matters do progress before a Court, our Building and Construction Lawyers can act on your behalf to defend your interests and rights, and pursue your financial objectives.

Frequently Asked Questions

Building defects can be major or minor with varying levels of complexity when it comes to making a claim. How a claim is settled often depends on whether the parties are amicable, and can agree to have the defects rectified. However, some defects involve large compensation payments, expert determination, and Court litigation to obtain a result.

In building contracts, the builder will likely have provided you with statutory warranties for the works commissioned, which may be relied upon if the warranty period still stands. During that warranty period, you may be entitled to request for the builder to fix the defective or incomplete work. However, it is important to observe the time periods to make a claim for defective building works, to ensure your rights to pursue the builder are not lost, which typically (subject to the terms of the building contract) are:

• Non-completion claims – 12 months from the failure to commence or from the cessation of the building work;
• Non-structural defects – Two (2) years from the date of completion; and
• Structural defects – Six (6) years from the date of completion.

In the event of a defective claim against building work, more often than not the builder will prefer to return and carry out the rectification works to avoid having to pay compensation or incurring the expense of a third party completing the rectification. If, for whatever reason, you don’t want the builder back at the property to rectify the defects, you should seek legal advice on your options.

In circumstances where the builder has failed to complete the works by the practical completion date you an option which may be available (subject to the terms of the building contract) is to terminate the contact with the builder in order to then make a claim under the insurance scheme. By not terminating the contract in time, or correctly and validly, you could void your insurance.

Typically, subject to the terms of the building contract, a payment claim can be made with respect to the building work carried out prior to the reference date specified in the terms of the building contract.

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