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;
    • Schedule 1 clause 5 – excessive or unjustified cost increases (variations)
  • Complaints about disciplinary matters.

Complaint resolution process

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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