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Breach of Building Contract Claims
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:
- non-payment of a payment claim issued under a contract that is either a fixed price or cost-plus contract.
- 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.
- suspension of the works (either lawfully or unlawfully).
- delay damages following failure to cause the works to reach practical completion by the contractually prescribed date.
- defective works.
- 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.
Frequently Asked Questions
Some statutes in Western Australia require a contract of a certain type (for example, a home building works contract) to be in writing. If the contract is not in writing where the statute requires it to be, the consequences will require a consideration of the statute in question.
It may be that the contract is unenforceable, but you could still be entitled to performance or payment on another basis.
A knowledgeable and experienced building and construction lawyer can help you to navigate these arguments and issues so that you do not necessarily need to ‘lose out’.
Assuming there are no issues involving compliance with statute, the fact that there is no signed or written agreement does not mean that there is no agreement between the parties.
Our experienced building and construction lawyers will assist you to gather the evidence needed to establish the existence of the relevant contract in question so that you do not lose out.
Our experienced building and construction lawyers can advise you as to the appropriate measure of your loss, the evidence needed to establish your claim and the legal arguments needed to convince a decision maker to award the loss and damage you are entitled to.
A building and construction lawyer will provide you with the correct legal advice regarding your claim. This will set the stage leading to: (a) the gathering of the evidence needed to establish your claim; (b) the appropriate forum in which to commence your claim; (c) effective representation in the proceedings leading to best possible outcome.
If you proceed without an experienced building and construction lawyer, you may not be aware of relevant case law that relates to your claim or the evidence you need to convince the decision maker to grant you the relief you seek.
Yes, our experienced and knowledgeable building and construction lawyers routinely assist with the prosecution and defence of all manner of claims relating to construction contracts.
Seeking the early assistance of a building and construction lawyer to defend the claim made against you will ensure that all available arguments to defeat the relevant claims are ventilated before the decision maker.
Likewise, if it seems that you have been served with a claim that has merit, our building and construction lawyers can assist you to resolve the matter at an early stage so that you do not waste time, money and energy defending a claim which truly does have merit.
We refer you to our disclaimer located at the bottom of the website.
For further information, read some of our articles.
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