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SA Bad Building Contractor - Going to Magistrates Court?

Discussion in 'Australian Consumer Law Forum' started by sthl, 26 April 2015.

  1. sthl

    sthl Member

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    We signed a contract in August last year for a pergola attached to the house for $17k. We received the plans and spotted errors, the main one it was encroaching over the boundary. I contacted the contractor company informing them of the errors and responded they had checked plans and they had been rectified. The company had the plans privately certified by building certifiers and we received approvals. They started the build and we saw some problems which we brought up with the installer and the management they assured us it will be all correct on competition.

    The last day the roof and gutters were installed. I inspected the work and was appalled that it was not the same structure as the plans we had received, off poor workmanship and it was encroaching over the boundary. Called the company and had a few site meeting in which it they admitted there had been an error and they would redesign new plans and have them back within the week for my approval. 3 weeks later still no plans, tired of excuses and having concerned about the structures safety (I'm drafter and work with structural engineer so I have some understanding of construction) I contacted the council. I informed council of the differences and that the job was finished 3 weeks ago.

    Council informed me that the Builder breached of Section 59 of the Development Act. Council promptly inspect the building work and found it was non-compliant ordering a section 84 Enforcement to demolish the structure within 21 days. They also informed me not to be anywhere near the structure or let anyone else near it. Sent the company a letter stating we wanted refund, remove and to return site to original condition. The company applied for an extension and it was refused by council. Thing went back and forth until it was agreed they would remove and repair on the 16/12. The day before the removal I received a call from the company stating a family member had died and due to the circumstance if they could get a structural engineers report to certify or temporary reinforce requirements for the structure in order get a 4 week extension. Off course I granted them access and they were granted extension. I sent letter rescinding the contract refund, remove and repair on 4 occasions, until just before the demolish extension time ran out I receive a call from the council that new plans was submitted to council and because they had been privately certified council had to approve them and withdrawn the section 84. Bewilder I informed I had not consented, nor had knowledge or even approved such plans. Then received a demand for final payment from a Special Counsel. Again it’s gone back and forth and I have served a final notice waited more than 21 days without a response.

    I preparing to apply to the Minor Civil Claims Magistrates Court but I don’t have any experience with legal system and have so may question if someone could give advice I would really appreciate.

    Should I sue for breach of contract, building or debt?

    I’ve taken a lot of time off work dealing with this can make a claim?

    What to include in the court statement?

    Any advice in general?
     
  2. Sophea

    Sophea Well-Known Member

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    Hi sthl,

    You would be bringing an action for breach of contract, the remedy given for breach of contract when it can be proven, is damages sufficient to put you in the position you would have been in had the contract been performed properly.

    Here is a link to a Qld site that provides guidance as to how to draft a claim (the same principles apply in SA): Factsheet -Drafting a Statement of Claim - tips and examples

    You may also consider getting some advice from Consumer Affairs - website below:
    Consumer and Business Services – Building or renovating a home
     
  3. sthl

    sthl Member

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    Thanks Sophea, that was exactly what I was looking for. I have lodge the court application and I will keep you posted. Thankyou so much.
     
  4. sthl

    sthl Member

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    I've been doing some research and I have come across this:

    This Code of Practice is intended to provide all Private Certifiers registered in South Australia with authoritative guidance on acceptable standards of conduct. Pursuant to Section 97 (4) a Private Certifier who contravenes or fails to comply with a provision of the Code of Practice is guilty of an offence.

    (h) not accept an engagement in replacement of another registered Private Certifier or Council without first communicating with that Private Certifier or Council and enquiring as to whether there are any circumstances they should take into account in deciding whether or not to accept such engagement, and whether the provisions of Section 96 of the Development Act 1993 concerning removal of a Private Certifier have been satisfied;

    (k) determine whether any notices under the Development Act have been issued to the owner of land or a building which forms part of a proposed development and ensure that a provisional development plan consent has been issued for the development application. A Private Certifier or Council must not issue a provisional building rules consent until satisfied that the proposed development is consistent with the requirements of the notice(s) and/or the provisional development plan consent.

    (h) The company used a Private Certifier for the 1st plan and a different Private Certifier for the 2nd.
    (k) A section 84 notice was in place and no one was ever contacted, even the Council office was unaware.
    Would this be a breach of a Private Certifier duties?
     

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