NSW Issued a Faulty Complying Development Certificate - What to Do?

[Jimmyboy]

I am an owner builder doing a granny flat development. I had a Complying Development Certificate issued by a private certifier. After my services were in place and excavations were complete, I booked a inspection certifier and I passed first inspection.

Few days later, he informed me he made a mistake and the plans didn't comply because the building is nearly 2 meters too tall on the plan to comply and he must have overlooked it, however, I had ordered the whole building made to measure to suit the plans he certified. Now we have started the process to fix the problem, re lodged plans as a DA the whole process started again.

Because of this error I have lost time and money, my pier holes caving in and I have 30k worth of building materials sitting in weather, lost potential rent, interest being paid on a project as it's borrowed money and worst of all, I have organised time of work without pay to the build under this CDC.

I have sent a letter of demand stating the ongoing costs caused by the faulty certificate and he has agreed to pay for all costs verbally but never responding directly to the letter of demand. Also he keeps trying to get me to sign a surrender letter he wrote on my behalf addressed to council surrendering the CDC formally. Because of this I assume he will not reimburse me without legal action.

The Environmental Planning Act 1979 section 109p says I am not liable. How can I make him cover these damages? Small Claims Court? Report him to The Building Board of Professionals? Land and Environment Court?

Please help. I need guidance. I am willing to represent myself and need a point in right direction.

Thanks

 

[Lance]

Hi Jim,

I can't give advice (I'm not a Lawyer) but I have taken claims to court before. Your letter of demand has to be very specific. This amount to be paid within 7 days...Or he can just say, "Yeah, ok" and never pay it.

If you put strict requirements to be met by a date and its not met then you can take it to Local court (under $60,000) or District / Supreme Court (over $60,000). Just be aware it's going to start getting expensive in the higher level courts.

 

[Jimmyboy]

Thanks Lance

What exactly do you mean by strict requirements?

Lance If I explain in the letter of demand the loss and damages, itemise all costs associated with the Faulty CDC with a due date and warn legal action will be taken if not paid, is that enough info?

Should I send an invoice?

Cheers

 

[Lance]

Hi Jim,

Sorry, I was trying to say a set time / date for which they have to have actions complete.

Something like. $500 to be returned to my account by close of business Friday the 10th March 2017. Failure to do so will result in an application to the local court to recover $500 along additional cost for lost time. My bank details are as follows.

As I said I'm not a lawyer but I have done this in the past and had success each time. If you don't give a drop dead time/date they will drag it out. And the time you give them needs to be reasonable, like a week or two.

I hope that helps.