In the present facts and circumstances of the case, the plaintiff had purchased a piece of land and had contracted with the first defendant who was the builder, regarding the construction of the house on that particular land. However, later the plaintiff had engaged another defendant company named asset building services for the performance of certified which comes under the Building Act 2004. The plaintiff alleged that the second defendant had breached the contract by not exercising due care and skill in the performance of his duty. The contract for the land it was entered but the completion date for the construction of the house was not clear under the contract. The building contract under which the plaintiff had entered was a housing industry association standard form and the practical completion for the project was 126 days, and the same plane was attached under the contract.
The issue of the case is that whether subsection 140 and 141 of the Building Act 2004, which are the apportionment provisions are applicable in this case or not?
Whether the individual or the company was appointed as a certifier, as the contract was entered between the plaintiff and the company that the work will be carried out with due care and skill.
The Construction Contract Law along with subsection 140 and 141 of the Building Act 2004 will be applicable in this case.
Building (General) Regulation 2008, Subsection 31, 31(b), 32, 32(1)(b), 32(2), 33
Planning and Development Act 2007 (ACT)
The plaintiff was advised by a friend that there are various problems with the house which raised the concern of the plaintiff. The court had identified with the help of an expert that whether the building has a defect, the report by an expert was then accessed, which suggests that there are various categories of the defect in the building; however, the defendant did not rely on that report. At the time of construction, nobody was there to witness the construction of the dwelling and the expert only relied on these stamping techniques to ensure whether the ground is soft or not.
Under subsection 44 and 43 of the act, the certified should not have provided this certificate for the building work if you are satisfied that it was not conducted properly2. The building regulation clearly states that the work must be complied by all the standards under the building code and will be carried out most properly and skillfully which is absent in the present facts and circumstances. Also, the present case was not according to the building regulations 2008 of section 43. The work must be done according to the reasonable grounds that it is of utmost quality and will satisfy the owner under section 42 of the Act3.
In the present facts and circumstances of the case, the court held the certifier liable for the defects. The court held that the defendant had not performed his statutory and contractual duty with utmost skill and care because if he would have performed his duty, it was his responsibility to notify the builder that there are certain defects in the building which needs to be e address. However, the court also addresses that the defendant was not supposed to detect for changing the defects in the works of the builder but the court opined that the particular situation the defendant should have remedied the defects4.
So far as the apportioning liability is concerned under the building act 2004, is a defendant who is found to be liable will be imposed with apportionment of liability. However, it must be noted in the present facts and circumstances of the case that the defendant who was subjected to be liable had not settled with the plaintiff before the judgment or proceeding of this court like what the defendant number 1 had done. And due to this for the apportionment of liability defendant, 1 is not present which made the entire liability goes over the shoulder of defendant number 2 which is certified in the present case. Therefore, defendant number 2 has to bear all the damages suffered by the plaintiff5.
In a situation where the plaintiff sues more than one party regarding any defect in the work in the building, but only a single defendant is found to be liable as the other defendant had priory settled with the plaintiff, under such a situation no apportionment of liability will be provided under the Building Act 2004. Also, in the present case, the defendant will not be able to reduce the liability in the post upon him by claiming that the quality of work was not his responsibility. The court stated that to access as to whether the building work has been completed according to the approved plans and whether the work has been completed with utmost skills can only be determined with the certificate provided by the certifier. Thus if the certifier in the present case was not satisfied with the work he should not have given the certificate according to the provisions of the Building Act. Thus according to the Building Act or according to the Building Code of Australia, under section 44 of the Act, the certifier had not complied with the duty that was enshrined upon him which made him liable to pay for the damages suffered by the plaintiff
Under section 148 (1) (b) of the Victorian Civil and Administrative Tribunal Act 1998, an appeal was filed. The applicant was the versatile registered proprietor and Dr Riaz was the respondent who was also the director of the corporate entity. The property suffered from various damages and both the versatile and Dr Riaz had filed a claim against the builder. Both the parties had entered into the negotiations with the 101 construction Private Limited for setting up the quotation. The terms in the contract do not reflect the extent of work done by the builder and this raised a conflict between the parties. In this case versatile wanted to seek compensation from the builder. The entire issue revolves around the appointment of joint and several administrators and liquidators referring to section 500 (2) of the Corporations Act. It was found that versatile had repudiated the entire contract but the claim of the owner for the breach of contract regarding the defective work in the building had predated the reputation against the builder.
Whether the Tribunal in the present case has misapplied the test and doctrine of repudiation regarding the validity for terminating a contract.
Whether there was a failure in taking the relevant evidence into account from the end of the Tribunal.
Whether in the present case there was a failure of procedural fairness.
Section 500(2) of the Corporations Act 2001 (Cth)
Domestic Building Contracts Act 1995 Section 53
Victorian Civil and Administrative Tribunal Act 1998, Section 148
The building dispute arises regarding a particular warehouse in Victoria Street Fitzroy, this residential building had to be converted into a commercial office. The building suffered from various significant damages due to the water leaking. Versatile Private limited was the owner and Builder 101 Construction Private limited was the builder for the warehouse.
It was contended by the applicant that the Tribunal had erred in finding the intention of the builder and it had applied the test of repudiation in the wrong way. However, the Tribunal had set out the relevance of the test of repudiation. For the test, the objective acts and omissions must be taken into account and not the un-communicated intention7. The conduct of a reasonable person is sufficient to convey the tension in a particular situation. In the case of Kane constructions Private limited8, the court held that any contract can be repudiated if any party renounces the liability enshrined upon him or by expressing the intention of no longer to be bound by the contract. In the present case, the Tribunal had not failed to apply the objective test to determine whether the building contract had occurred or not.
Apart from this the Tribunal had focused on the balance of probabilities and had not solely relied upon the words of the builder but had also taken evidence from the witness. The grounds of procedural fairness were also determined in this case as it was contended that the Tribunal had denied the procedural fairness to the applicant in regards to assessing the damages. The question of procedural fairness was revolving around the undisclosed principal issues, where the Tribunal has determined that the owner was an undisclosed principal and there was a mutual mistake in the contract. However, the applicants contended that they were not provided by any notice and no chance of producing any evidence for the issue. It was the duty of the court to properly apply the test to determine whether the undisclosed principal was the owner or not9.
In the present functions of constants of the case, the Tribunal had found that the builder had failed to properly set out the basis of its claim. The list provided by the builder had not been accompanied by the claim for damages for the breach of contract and there was no whatsoever evidence provided by the builder to show that he had suffered any loss or damage. In the present case, it was very uncertain to find that builder would have made any profit.
In the case of Gates vs City mutual life10, the court held that to award the loss of the damage must be analyzed including the expenditure upon the contract. However, in the present case, it cannot be constituted that the builder had suffered any damage due to the breach of the contract made by the owner. According to section 53 of the domestic building contracts act of 1995, the Tribunal had to assess the entire loss and damages according to the principles of law.
The claim of the builder was made against the plaintiff in his capacity and not versatile as he was the actual contracting party. The appellant was not aware of the versatile when the contract was made. The contract shows that the plaintiff was acting as an agent of versatile. A person can be sued or can sue in a contract even when he did not know the person with whom he is entering into. Therefore both the principal as well as the agent can be sued under the Corporations Act of Australia. Therefore the domestic building dispute which arises between the parties must treat the claim of builder against the plaintiff as a claim that is made against the versatile and then in such circumstances one can be set off. The builder had to pay compensation to Versa Tile.
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