Is an owner required to permit the return of a builder to rectify defects?

The recent case of The Owners – Strata Plan 89401 v Galyan Pty Ltd considered whether it is unreasonable for an owner to not permit the return of a builder to rectify defects. The case involved an owners corporation (the owners – strata plan 8940) who made a complaint to NSW Fair Trading regarding building defects attributable to the builder (Gaylan). The owners corporation, in communicating with the builder, sought the rectification of defects with no suitable response and subsequently commenced proceedings as the expiration of the defect liability period was impending. The builder was then instructed that he was not permitted to return to the premises to rectify the remaining defects. In reaching the decision, the Court had regard to whether the owners corporation had reasonably lost confidence in the ability of the builder to rectify the defects. The Court heard evidence relating to the fact that the builder’s representative had failed to provide a scope of work and other requested information and failure to attend the property at appointed time to carry out the work. The Court ruled that the builder had not sufficiently demonstrated that the owners corporation was unreasonable in not allowing the builder back on site to rectify defects. The builder was ordered to pay the owners corporation’s costs.  This case demonstrates that despite the Court preferring to be consistent with the Home Building Act and allow builders back onsite to complete rectifications, in certain circumstances this is not always reasonable.

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