Some time ago I wrote about dispute mediation that left my client with less than satisfactory result http://www.buildingexpert.net.au/blog/dispute-mediation-bring-out-your-guns-or-else/
Recently however I was assisting another of my client’s in a dispute of virtually the same subject.
Fourth building owner was seeking compensation from owner builder for allegedly defective building works. The claim was for around 70K and owner had expert report prepared by a competent building consultant. The claim essentially was for building leaks, foundation movement, rot in weatherboards and external painting.
After my inspection I came to a conclusion in my report that owner’s claims could not be sustained.
Hearing was held and joint re inspection of property with testing was ordered by VCAT. After the re inspection I reported as follows:
- 1. Summary of the opinion or opinions of the expert:
a) The inevitable conclusion following extensive flooding, pressure hose testing which failed to confirm any leaks and the flexible camera inspection that failed to find any damp spots is that the balcony is well constructed and weatherproofed and has withstood eight years of use and other natural severe weather events. Consequently the allegation of defective balcony waterproofing in my view is not proved and the claim for rectification works is untenable.
b) Dampness found on the lounge room ceiling in the location of the stain is not explained by alleged balcony leaks and is likely to be from other causes, perhaps related to render cracking caused by foundation movement as a result of lack of property maintenance (see lower photo on Page 8) or due to owner related alterations (installation of sunscreens). However it is not my intent to speculate other than to point out there are other possible and credible explanations unrelated to defective builder’s work. It is for the applicant to prove the defect and it is not done so.
c) Whilst it is confirmed that the ends of the weatherboards are not sealed (and yes they should have been) no rot whatsoever was found. Instead it was found that the rot corresponded to wall opening (from air conditioner installation) that allowed water entry and under gutter leak. The weatherboard rot was most prevalent on the western façade where exposure to weathering is the greatest. As a qualified and accredited timber pest inspector with over 5,000 property inspections I have no hesitation in declaring that the rot in weatherboards is caused by lack of paint coating maintenance and the lack of property maintenance. External paint coating longevity is min. 36 months that means that this property dilapidation is caused by approximately of five years of paint coating neglect.
d) Water ingress into the garage is alleged to be from defective workmanship but I have found render cracking over the offending area caused by foundation movement that in my opinion is the cause of water ingress. As this is due to property maintenance neglect the builder’s defective workmanship in my opinion is not proved.
e) It is incomprehensible that the crack to the rear wall is still the point of claim when clearly the offending downpipe causing structural damage is on the adjoining property.
f) After reinspecting this property, I have no reason to change my opinion on any of the matters and repeat my previous opinion:
“Owner who has not maintained property within occupancy permit conditions and who has not carried due diligence prior to purchase has complained of latent building defects on a property that has had successive owners and had other works carried out (other than the builder) by persons of unknown qualifications.
After inspecting the property I have considered all twelve claims and concluded that none could be proved as latent defects under builder’s warranty.”
Faced with impossibility of proving the claim owner gave up and both parties walked away with minimal cost settlement.
My client was saved from a big payout to a predatory owner, however a reverse result could have easily been occurred had my client not been well prepared and well supported with expert report.
