If ever there was a loaded gun pointing at builder, here it is:
Domestic Contracts Building Act 1995
s8 Implied Warranties(d) (1)The builder warrants that the work will be carried out with reasonable care and skill
and
defective, in relation to domestic building work, includes—
(a) a breach of any warranty listed in section 8;
(b) a failure to maintain a standard or quality of building work specified in the contract;
That is the law, but what does it mean? It means that it does not matter if the builder has complied with all regulations and even if the work is within guide to standards and tolerances it can still be defective if it fails the reasonable care and skill test
Skill is not in dispute in can be inferred from builder’s registration requirements:
Domestic Builder Registration. The competencies herewith are specific to the registration category and class of building practitioner, for the purpose of registration with the Building Practitioners Board, under section 170 of the Building Act 1993.
Business management
Knowledge of:
• business planning• cash flow budgets• basic accounting principles• employment law• contractors law• communication practice
• organisational skills• conflict resolution• problem solving• human resource management• occupational health and safety
• insurances– professional practice– employees– domestic building contract• information technology• quality assurance systems
• self-development principles.Ability to:• implement financial strategy• interpret accounting documents• use costing information
• prepare income and expenditure projections• manage business taxes• monitor financial performance. Building technology
Knowledge of:• Australian Standards• Building Code of Australia (BCA) 2005• local council requirements• general construction technology terms and methods• Victorian Building Commission’s Standards and Tolerances.
Building work management (operational) Knowledge of and ability to:• administer a domestic building contract• establish a building site• apply scheduling methods• apply stock control principles• apply quality control to building works. Knowledge of:• principles and law of contract• building contracts and contract documents• contract administration• dispute resolution• insurances• tendering and estimating• quality concepts• time management. Building work management (supervision) Knowledge of:• insurance claims• tender preparation and documentation, estimating and preparation of a bill of quantities
• occupational health and safety issues at the worksite and the workplace• hazard assessment and control• site induction program
• site responsibilities of various personnel at a worksite• occupational health and safety principles and practices• roles of site managers and supervisors• establishment and ongoing site maintenance
• scheduling• communication• purchasing and record flow. Legislation Knowledge of:• Building Act 1993• Building (Interim) Regulations 2005• Domestic Building Contracts Act 1995• Domestic Building Contracts and Tribunal (General) Regulations 1996
Where a builder engages other contractors to carry out work he remains responsible as if he carries out the work himself.
So to comes down to the fact that builder is paid his asking price(agreed price) to do a good job and we know that he has the skills to do it but does he care? When looking at builder’s work the following test will answer the question:
“If it looks wrong it is”
” would you expect someone skilled in their art to do better?” If the answer is yes to both of the above, then it’s the lack of reasonable care and the defect is established.
THAT IS THE LAW
In my opinion there is no defence to lack of care and skill unless builder can establish prevention outside his control.
