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A home is often the largest investment most people will ever
make. When disputes arise about the quality of workmanship or
specific contractual terms, they can become costly, time-consuming
and stressful, particularly if the value of the claim is relatively
modest. The new building dispute complaints resolution process is
designed to assist owners, builders and other interested parties,
to resolve disputes quickly and efficiently without the need for
court proceedings.
A year has now passed since the Building Services (Complaint
Resolution and Administration) Act 2011 ("the Act"),
came into force on 29 August 2011. The Act provides for a two-stage
dispute resolution service with (1) simple or common complaints
being received and dealt with by the Building Commissioner and (2)
complex disputes being referred to the State Administrative
Tribunal (SAT) for determination.
The Building Commissioner now replaces the Building Disputes
Tribunal, which previously dealt with such disputes in Western
Australia.
What disputes can the Building Commissioner deal with?
The Building Commissioner is able to deal with:
Complaints about regulated building services not being carried
out in a proper and proficient manner or being faulty and
unsatisfactory, particularly:
Work done by registered building service providers (i.e.
builders, painters, building surveyors etc);
Work done under a contract (or similar arrangement) for home
building work.
Complaints about matters under the HomeBuildingContracts
Act 1991, particularly:
Section 17 – breach of contract;
Section 20 – payments if a contract is
terminated;
Once the Building Commissioner receives a complaint, he may
accept or reject it. If it is accepted, he must ensure that an
investigation is carried out and a report produced. The Building
Commissioner may then:
dismiss the complaint;
order the parties to conciliate;
deal with the complaint by making a building remedy order (e.g.
ordering a person to remedy the work, pay the cost of someone else
to remedy the work or pay compensation) or a Home Building Work
Contract remedy order (e.g. an order to pay an amount payable under
the contract, for compensation, voiding a contract, etc);
refer the complaint to the SAT; or
refer a disciplinary matter to the Building Services
Board.
Time limits
A complaint may be made even if the regulated building service
was carried out, or the matter complained about occurred, before
the Act came into operation.
However, there are time limits for lodging a complaint with the
Building Commissioner. Generally, a building service complaint
cannot be made more than 6 years after the completion of the work.
The time limit for a Home Building Works Contract complaint is
generally 3 years (see HomeBuildingContracts Act
1991).
Costs
Generally, the Building Commissioner or the SAT has discretion
to make such cost orders as it thinks fit.
Jurisdictional limits
However, it should be noted that the Building Commissioner's
jurisdictional limit is $100,000. Furthermore, the SAT can only
order work or payments up to $500,000 against an unregistered
person (but there is no limit to the work or payments that SAT can
order against a registered building provider). If a claim is above
these limits, it may be necessary to follow the relevant court
process, in which case legal advice should be obtained before
proceeding.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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