Building Contracts & Disputes

Building Contracts & Building Disputes

At Cyngler Kaye Levy Lawyers we have over 25 years experience in assisting Building Companies and Home owners to navigate the complexities of Building Law Building Disputes.

There are many parties involved in any building project including:-

  • Owner
  • Builder
  • Building Surveyor
  • Architect
  • Town Planner
  • Neighbours

Builders:

If you are a Builder or Contractor, and your customer is disputing the terms of the Building Contract or holding up a building progress payment, we can assist with negotiations, mediation and ultimately litigation at VCAT if the matter cannot be resolved.

Owners:

Engaging a builder to build your dream home or commercial property can be a complex process with many issues to consider before making your final selection of building company or contractor and signing the Building Contract. We can also assist with Pre-contract advice.

If you have already commenced building and a dispute arises, our experienced Building Dispute Lawyers will quickly and assertively intervene on your behalf to negotiate a rectification of the terms of the contract. If the parties cannot come to an agreement, as experienced Building Dispute Litigators we can take the necessary court action to force the builder or contractor to undertake what was agreed to in the Contract.

Things to Consider before entering into a Building Contract

  1. Prime cost and provisional sum items
  2. Variations (including contract price)
  3. Progress payments
  4. Delays and Extensions of time
  5. New Bushfire Standards
  6. Cooling-off Period
  7. Home Warranty insurance
  8. Defective Works
  9. Inferior building materials used
  10. Negligence
  11. Retention Sum

Jack Cyngler is a member of the BDPS – Building Disputes Practitioners’ Society Inc.

Additional Parties to a Building Dispute:

Third Party Liability  /  Proportionate Liability  /  Joint and Several Liability

It is very important to identify all the parties to a Building Dispute at an early stage in the Building Dispute. This allows you to litigate or defend a claim and negotiate a settlement or enforce a judgment as efficiently as possible.

If you as a plaintiff believe that more than one party may be responsible for the loss and damage you have suffered, you may seek relief against any or all of those defendants by bringing claims against them.

A defendant who alleges that the plaintiff’s loss or damage was caused entirely or partially by a third party can join that other party and deny (full) liability on one of the following bases:

1.    The third party is entirely responsible and liable for the plaintiff’s loss. In this instance, the defendant’s argument is that defendant is not liable for the plaintiff’s loss or damage and that therefore the plaintiff has sued the wrong party.

2.    The defendant and the third party are concurrent wrongdoers, who are jointly or proportionately responsible and liable for the plaintiff’s loss. In this instance, the defendant claims a contribution from the third party for the third party’s share of the plaintiff’s loss or damage. The defendant and the third party may have caused the plaintiff’s loss jointly or through independent acts and may be liable to the plaintiff on different grounds.

If the rules of proportionate liability apply to your Building Dispute and the defendant proves that another party contributed to the plaintiff’s loss, then the defendant’s liability is limited to take into account the extent of the defendant’s liability to the plaintiff.

The proportionate liability regime does not permit overcompensation to the plaintiff. However, if a plaintiff obtains judgment against a party who is partly responsible for its loss, the plaintiff can still sue another party it has not previously sued to recover the proportion of the loss for which that other party is liable.

Note that proportionate liability does not apply to certain types of claim. If the rules of proportionate liability do not apply, the defendant can be held liable for the plaintiff’s entire loss or damage and the plaintiff can enforce the judgment against the defendant even if the defendant proves that a third party is also liable for the plaintiff’s loss or damage. This is called joint and several liability: that is, the plaintiff can recover its whole claim from any defendant against whom the plaintiff has obtained a judgment.

If you are a defendant and you believe that a third party is liable for the plaintiff’s loss or damage, it is for you to join the third party and claim a contribution from the third party (unless that party is a dead person or a company that has been wound up). The plaintiff must then decide whether to make its claim against the new party as well.

Please do not hesitate to contact our experienced Property Lawyers on +61 3 9500 1722, request a cost estimate or email an enquiry.

Melbourne Building Dispute Lawyers

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