Proceedings for breach for statutory warranty must be commenced before the end of the warranty period. The warranty period for breach resulting in major defects is 6 years from the date of completion of works and 2 years for any other defects.

Where proceedings are commenced 2 years after the date of completion of works, the Tribunal will only have power to determine the claim if it is established that the defects are “major”. A defect is major if it causes or is likely to cause:

  1.   inability to inhabit or use the building (or part of the building) for its intended purpose, or
  2.   destruction of the building or any part of the building, or
  3.   threat of collapse of the building or a part of the building, or
  4.   defect of kind that is prescribed by the regulations as a major defect.

It is not enough to point to a defect. The relevant defect must fall into one or more of the above categories. In order for the Tribunal to accept that a defect is a “major defect”, the evidence must engage with the ‘major element’ and ‘major defect’ definitions contained in the Home Building Act and must clearly set out the reasoning process to support a conclusion that the defects are major. This requires properly prepared evidence from qualified expert.

A point of dispute in statutory warranty claims often revolve around the commencement of the warranty period and practical completion, you should seek advice as soon as possible on this matter as it could have it a significant impact on whether the Tribunal has the power to hear a statutory warranty claim for defective works.

Written by Malik Anne

Mallik

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