Statutory Warranties and Defects

3 March 2022 in Building and Construction Law, Dispute Resolution Law

What is a Statutory Warranty?

Section 18B of the Home Building Act 1989 (NSW) contains various warranties that are implied in all contracts for the completion of residential building work. These are referred to as statutory warranties. Statutory warranties relate to things such as the quality of work completed, obligations to complete work with due diligence and within a reasonable time. There are also various provisions within the Home Building Act 1989 (NSW) that must be complied with when commencing proceedings for the breach of a statutory warranty. Statutory warranties cannot be excluded by any form of agreement or contract and apply to all residential building work irrespective of the cost of the work being completed.

What is a defect?

In the context of statutory warranties, the nature of defects that result from a breach of a statutory warranty will determine how long a party has to take legal action in response to the breach. The Home Building Act 1989 (NSW) provides that a party can commence proceedings for the breach of a statutory warranty that results in a major defect within 6 years of the completion of the work to which it relates.

Section 18E(4) of the act defines a major defect as “a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes or is likely to cause –

The inability to inhabit or use the building (or part of the building) for its intended purpose, or
The destruction of the building or any part of the building, or
A threat of collapse of the building or any part of the building,

Or is a defect of a kind that is prescribed by the regulations as a major defect, or the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that act.”

How can the BSM Building and Construction Lawyers Help Me?

Advice in relation to the Home Building Act 1989 (NSW)

Our lawyers are industry experts with years of experience handling residential, commercial and industrial construction legal advice and building disputes at all levels. They are able to clearly and simply explain the rights and obligations of the created by the Home Building Act 1989 (NSW) in relation to statutory warranties.

2. Legal Proceedings

The building and construction lawyers at Brander Smith McKnight can commence legal proceedings for breaches of statutory warranties. We know the intricacies of the legal system and will ensure that time limits, choice of court or tribunal and other legal requirements are complied with. We also regularly act for clients in disputing the breach of a statutory warranty and can advise of the various legal defences.

3. Alternative Dispute Resolutions

Unfortunately disputes are reasonably common in the building and construction industry and can include defective building work, variations, delays and payment disputes. The lawyers at BSM take great pride in their ability to resolve at least 75% of disputes without the need for costly litigation. We recognise that there are many different ways to resolve disputes and we work hard to find practical and commercially advantageous solutions. Our building and construction lawyers are very strong negotiators and often achieve positive results through effective negotiation, saving you time and money. Other alternative dispute resolutions used includes, mediation, conciliation, arbitration, adjudication and expert determination.