If you get into a building dispute with your Builder, prior to making an application in the NSW Civil and Administrative Tribunal (“NCAT”), you are required to attempt to resolve your dispute with the Builder through NSW Fair Trading. NSW Fair Trading (“Fair Trading”) will then attempt to mediate your dispute.
The first attempt to mediate will be by telephone. Subsequently, a Building Inspector from Fair Trading may carry out an inspection and either issue a Complaint Inspection Advice or Rectification Order to the Builder.
For Builders, if you have a dispute with a Home Owner, then it is more commonly regarding a non-payment. This allows you to directly lodge a claim in NCAT.
NSW Fair Trading’s Orders
A Complaint Inspection Advice would essentially list down what was agreed to between the parties. A Rectification Order on the other hand is at the discretion of the NSW Fair Trading Building Inspector. Failing to comply with a Rectification Order, without reasonable cause, acts as a trigger for disciplinary proceedings or a penalty infringement notice.
Requirements of a rectification order are:
- may specify conditions (including conditions with respect to the payments under the contract);
- be made as a staged rectification order;
- must specify a date by which the requirements of the order must be complied (subject to conditions);
- indicate that the order will cease to have effect if the matter giving rise to the order becomes the subject of a building claim.
- A rectification order may be amended by a further rectification order.
Builders should note that it is a condition of their licence that the requirements of a Rectification Order must be complied with. However, if a claim is lodged in NCAT, then that Order ceases to have effect.
Written by Atul Singh