The Building Commission and, if applicable, State Administrative Tribunal have jurisdiction to consider complaints concerning a breach of a home building works contract: Section 5(2) of the Building Services (Complaints Resolution and Administration) Act 2011 (WA)(Act); Section 17 of the Home Building Contracts Act 1991 (WA) (HBC Act). 

A home building works contract is a contract for the performance of home building works for a cost between $7,500.00 and $500,000.00.

Practically speaking, common issues founding a potential HBWC Complaint which our building and construction lawyers have experience advising upon are as follows:

1. non-payment of payment claims issued under a home building works contract.
2. unlawful payment claims issued purportedly under a home building works contract (for example, before the relevant stage of works have been completed).
3. defending or challenging the issue of a price increase notice.
4. defending or challenging claims for an extension of time to bring the works to practical completion. To read more about these issues, click here
5. unlawful suspension of the works.
6. defending and prosecuting claims for delay damages. To read more about these issues, click here.
7. contract termination. To read more about these issues, click here.

If you believe you may have grounds to bring a HBWC Complaint or, have been served with a complaint or notice of proposed complaint, contact our knowledgeable and experienced building and construction lawyers to arrange a free initial telephone conversation to discuss the matter.

For further information, read some of our articles.

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Building contracts and contracts generally are a collection of terms which the parties have agreed for the purposes of conducting their relationship or transaction.

A breach of a contract, including a building or construction contract will arise where one party asserts that their counterparty has breached a term or condition of the contract.

The above includes disputes as between a subcontractor and a builder, principal or head contractor under an overarching building or construction contract.

Scenarios commonly encountered by our knowledgeable and experienced building and construction lawyers concerning breach of a building contract are as follows:

1. non-payment of a payment claim issued under a contract that is either a fixed price or cost-plus contract.
2. unlawful issuance of a payment claim under a construction contract, for example, before the works reached the stage of completion entitling recovery of the payment stage.
3. suspension of the works (either lawfully or unlawfully).
4. delay damages following failure to cause the works to reach practical completion by the contractually prescribed date.
5. defective works.
6. refusal or failure to pay a claim issued by a subcontractor.

If a breach of a building or construction contract occurs, the innocent party (party not in breach) will generally be entitled to recover loss and damage arising from that breach. In some cases, the innocent party may be entitled to terminate the contract entirely.

In these cases, damages will be calculated to derive a figure to put you in the same position that you would have been had the contract been performed (not breached) by your counterparty. For example, if your counterparty fails to deliver goods or services and you need to incur the cost of procuring alternative performance at a higher price, you may have a claim against your counterparty for the cost over and above you would have incurred had they performed the contract in the first place.

Some forms of loss and damage are only available once a contract has been terminated. For example, losses sustained from having to enter into a new contract with a new builder where your old builder refused or failed to tender performance, the law dictates that your first contract must be properly terminated before you can claim for the ‘loss of bargain’.

Termination of any contract is a serious and significant prospect that should not be entertained lightly. To read more, click here.

If you believe that you are a party to a contract and your counterparty has breached the contract in any way, including, the possible scenarios above, contract our experienced building and construction lawyers for a free initial telephone consultation.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

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Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

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In certain circumstances, a breach of your construction contract by your counterparty may entitle you to terminate the contract as part of any other remedy you may have under the agreement, including, for loss and damage.

Termination of your construction contract is a minefield of legal danger and significance. Accordingly, it should not be entertained lightly.

Generally speaking, there are three sources of legal right to terminate a contract:

1. rights afforded by the contract itself (express contractual right).
2. rights recognised at law as a basis to terminate the contract but which are not written down in the contract itself (common law rights).
3. rights conferred by statute (statutory rights).

Express contractual right 

The contract itself will generally contain clauses which inform the parties as to when and if they are entitled to terminate the contract.

For example, a construction contract may provide that if the works are suspended without lawful or reasonable excuse, the contract may be terminated by the innocent party.

The contract will also usually contain clauses that explain how the right is to be exercised. For example, a common method may require you to first issue a notice to your counterparty, informing them that a breach has occurred and request that they cease the conduct amounting to a breach within a specified period of time.

It is important to carefully review the contract in question to ensure that your termination is not called into question by virtue of the failure to properly comply with the provisions of the contract.

Common law rights

The law recognises a right for an innocent party to terminate an agreement in three situations:

1. A breach of an essential term of the contract: Essential terms, also known as conditions, are said to be terms so important to the contract in question that the innocent party would not have entered into the contract for anything less than full performance of the term in question.
   
   Whether a term is a condition of the contract is a question of law, which you should engage a knowledgeable building and construction lawyer about to ensure that you do not mischaracterise a term as a condition and mistakenly terminate the contract.
   
   
2. A serious breach of a non-essential term: If the term breached is not a condition, there may still be a right to terminate the relevant contract.
   
   More often than not, whether the breach of the non-essential term will entitle the right to terminate will require an examination of the consequences of the breach and the nature of the contract.
   
   
3. Repudiation: This word describes conduct by which a defaulting party has, by the nature of their conduct, demonstrated: (a) an intention no longer to be bound by the contract; or, (b) an unwillingness or inability to perform their obligations under the contract.
   
   To read more about repudiation, click here.

If you are contemplating terminating your contract, or, your counterparty has attempted to terminate your contract, you should immediately seek legal advice from our experienced building and construction lawyers.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

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With over 25 years of experience in Perth, Vogt Legal’s specialist team is equipped to handle a broad spectrum of property and real estate disputes. From buyer-seller conflicts and landlord-tenant disagreements to complex issues like contaminated land, our dedicated professionals provide tailored guidance to resolve even the most challenging cases.

Our specialist team at Vogt Legal has extensive experience with property disputes.

We can assist in a range of matters including:

• buyer or seller failure to complete sale transaction
• commercial & residential landlord & tenant disputes
• contaminated land disputes
• property investment/loan disputes
• encroachments
• caveats & other injunctions on land
• dividing fence disputes
• easements, restrictive & design guideline covenants, & other encumbrances
• bank guarantees & solicitor certificates.

If you are involved in a property dispute, or foresee a dispute in your future, call us today for a FREE initial telephone consultation.

We advise on all matters relating to planning legislation and the statutory and regulatory framework governing land use in WA.

We represent clients in relation to:

• Applications and town planning appeals
• Advice relating to the development of land including commercial and residential subdivision, rezoning, heritage, and environmental issues.

Please click the button below to arrange an appointment with Vogt Legal today.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Most construction disputes will stand or fall on the quality of independent expert evidence.

Construction law disputes typically require independent expertise such as building inspectors, engineers, and quantity surveyors to provide independent expert reports for use in legal proceedings.

Our wealth of experience has garnered the best industry experts to quickly and cost effectively provide industry technical assistance to either resolve a dispute, or to support our clients position in any dispute resolution process.

In cases where court or tribunal proceedings become necessary our team of lawyers commonly appear as counsel to navigate through the proceedings, closely working with our clients and industry experts to achieve the best possible outcome.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Our team has over 25 years of experience providing legal advice in commercial disputes arising from building and construction matters.

Throughout this time many decisions Will and the team have been involved in have been reported in the decisions databases of the Building Disputes Tribunal (now Building Commission), Magistrates Court, District Court and Supreme Court.

These disputes generally involve construction delays, price increases, workmanship issues and other major contractual disputes.

Our team appears frequently in the State Administrative Tribunal. We have also acted for clients in the Supreme Court, District Court and Magistrates Court in relation to these kinds of disputes.

From our many years of experience we resolve construction disputes including:

• delay damages including liquidated damages claims
• claims for extension of time
• payment disputes, including in respect of retention monies
• practical completion and defective workmanship issues
• disputes concerning the scope of works or standard of works
• rectification Works Claims
• advising on Latent Defects
• variations to a building or construction contract
• Building Commission complaints
• corresponding with a builder/customer in respect to matters arising during the course of the contract
• reviewing, negotiation and amendment of a building or construction contact.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

In constructions projects, it is common for certain elements of the work to require rectification, whether before or after practical completion. While some rectification work may be relatively minor, in other cases, the required rectification work can be far more costly. Regardless of the scale of the issue, we are equipped to assist.

Typically, most residential construction contracts include a provision for a defects liability period. This is a useful mechanism to be incorporated into a building contract, however, the defects liability period usually only lasts 6-12 months. This might be a cause for concern when defects begin to manifest after the defects liability period has expired.

Fortunately, homeowners can also rely on their statutory rights, in addition to their contractual entitlements.

At Vogt Legal, our experienced litigation team can assist you in:

• Evaluating the merits of your claim and providing strategic advice in relation to the most appropriate forum for pursuing it.

• Engaging high-quality and trustworthy experts to provide reliable evidence in support of your claim.

• Representing you in a range of jurisdictions, including Commercial Arbitrations, the Building Commission or the State Administrative Tribunal, based on your needs.

• Negotiating with the opposing party to resolve your matter quickly, with the aim of reaching a settlement before initiating any formal legal proceedings.

If you require guidance in relation to defective workmanship or rectification works, please contact us for a free initial phone consultation.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), individuals who are affected by building services have the right to lodge a complaint with the Building Commissioner.

At Vogt Legal, we offer expert legal services in the preparation and management of Building Commission claims, including those that are escalated to the State Administrative Tribunal (SAT) for further resolution.

Our services cover:

• Advising on any entitlement to lodge a complaint with the Building Commission.

• Handling all aspects of preparing a claim to be lodged with the Building Commissioner, including ensuring that all necessary documentation is correctly submitted, and all legal requirements are met.

• If a matter is referred from the Building Commission to the SAT, we provide guidance and representation throughout the entire process, advocating for your best interests and ensuring a thorough presentation of your case.

• In addition to assisting homeowners, we also represent builders and construction companies in defending claims brought against them, both at the Building Commission and before the SAT. We work to protect your business and minimise any potential legal or financial exposure.

If you need assistance with a Building Commission claim or representation in the SAT, contact us to discuss how we can help you navigate these processes effectively.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

We provide expert advice on all home building disputes under the Home Building Contracts Act 1991 (WA) and offer representation before the Building Commission, as well as the State Administrative Tribunal.

If you are involved in a home building dispute, please contact us for a free initial telephone consultation.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.

Commercial arbitration is a dispute resolution process whereby parties to a contract have agreed that an independent individual, acting as a private judge, finally determines the parties’ dispute and that determination is to be binding upon and enforceable by the parties.

For over 25 years we have protected the reputational and financial interests of our clients, mainly construction companies by ensuring their legal disputes are decided by private arbitrators. We have conducted hundreds of successful arbitrations in that time.

Our clients’ commercial disputes must be resolved quickly and confidentially. We achieve these goals by using, sometimes insisting on, the arbitration process instead of the courts and tribunals procedures.

Previous successful published cases in which Will Vogt’s clients have forced the parties to their dispute into the confidential environment of the arbitration process are found here:

• Shakur v Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT '12;
• Henderson v Aintree Holdings Pty Ltd [2021] WASAT 113.

Some of the benefits of the arbitration process that are not afforded by the courts and tribunal procedures are:

1. The entire arbitration process is conducted in private and the decision or ‘award’ is confidential;
   The arbitrator’s decision or ‘award' is enforceable in the same way that a decision of a court or tribunal is enforceable;
2. The arbitration process is less formal than the court and tribunal procedures resulting in a faster and cost-effective outcome;
3. The arbitrator is a specialist in the area of law or field of industry (such as building and construction);
4. The parties may agree on who the arbitrator will be;
5. There are usually no limits as to the nature and extent of the claims a party may make, whereas, typically, tribunals have limitations on the nature and extent of the claims brought to the tribunal;
6. The parties may agree on the procedural steps to be followed in preparation for the final hearing of the dispute;
7. The arbitration decision or ‘award’ is final and there is a very limited appeal avenue;
8. The successful party in the arbitration is usually entitled to recover legal costs from the unsuccessful party.

Whether a matter is capable of referral to an arbitrator is determined by the scope of the arbitration agreement in the relevant contract.

The process of arbitration is generally governed by relevant legislation in each state, including:

• Commercial Arbitration Act 2012 (WA);
• Commercial Arbitration Act 2013 (QLD);
• Commercial Arbitration Act 2010 (NSW);
• Commercial Arbitration (National Uniform Legislation) Act 2011 (NT).

Most of the standard residential building contracts in Western Australia have the effect that:

1. the Parties are at liberty to commence proceedings in a Court or Tribunal in relation to the facts which give rise to their dispute; however,
2. in the event that one party commences proceedings against another party in relation to an agreement which contains an arbitration agreement, the other party is at liberty to apply to the Court or Tribunal to refer the matter to an arbitrator up until the other party files its first case statement in those proceedings.

Vogt Legal has vast experience providing legal advice and services in relation to commercial arbitrations, including:

• Advising about the terms of arbitration clauses in contracts;
  Advising in the nomination of an appropriate arbitrator under the terms of the relevant arbitration clause;
• Advising about the necessary expert witnesses (e.g building inspector, engineer, quantity surveyor, architect) to quickly secure to provide expert evidence at the arbitration hearing;
• Representing clients in the arbitration process and final hearing;
• Enforcing a decision or award made by an arbitrator;
• Advising on any appeal of an award made by an arbitrator.

Contact Vogt Legal when you think arbitration may be the dispute resolution process that you require to protect your financial and reputational interests.

The above information is general in nature and should not be relied upon as legal advice. You must obtain legal advice specific to your circumstances.

For further information, read some of our articles.

Talk to us today for a FREE initial telephone consultation.

Our Services

Located in Northbridge, just 5 minutes from the CBD.

Suite 1, Level 5, 102 James Street, Northbridge, WA, 6003

Contact  us today for a FREE initial telephone consultation.