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Law Clarified
Law Clarified
Ep 4: Owners Hour - When Builds Go Bad
Hi Queensland property owners!
Episode 4 of our Owners’ Hour Series is here!
In this episode, we invent a new technical legal term for building disputes - the “argy bargy” - and explain some things to think about before terminating a residential building contract, kick the builder off your property and start legal proceedings in the Queensland Civil and Administrative Tribunal (QCAT) or the courts.
We laugh about this episode being more like a dating service…. we talk about what you can do if a builder starts ghosting you – not returning your calls, emails or text messages.
But seriously, building or renovating a home is a huge financial and emotional investment. We want to make sure you have everything you need to take away some of the stress or worry with building or renovating your dream home.
Got some thoughts on today's episode? Please join our conversation on our Instagram page @hearthstonelegal.bne
Check out our website: https://www.hearthstonelegal.com.au/
Send us an email: law@hearthstonelegal.com.au
Thanks so much for listening!
**DISLCAIMER: Please note, topics discussed in this podcast are for general information and entertainment purposes only and do not constitute or seek to replace legal advice and should not be applied to your individual circumstances. Please seek qualified legal advice**
Hi. Hi. Welcome to episode four of Owner's Hour. Hi Marty. Hi, Kelly. How are you going? I'm really good. How are you? Good. Excellent. Let's dive in so far in owner's hour, we've covered a general chit chat about how to pick your builder. Mm-hmm.<affirmative> some contract tips and pitfalls. Mm-hmm.<affirmative>, we've talked about the Q bcc mm-hmm.<affirmative> Today we're gonna talk about like, what happens when you've just gotta bring on the Biff<laugh>, if I can say that.<laugh>. Bring on the Biff. Bring on the Biff. Yeah. Do do you mean when something goes wrong and there is a dispute about something? That is a much more eloquent way to put it. Yes. All right, well, let's just bring on the beer. Let's do it.
Speaker 2:Half stone Legal presents a real talk of the good, the bad, and everything in between for all things business and construction law, whether it's navigating a dispute, the Q bcc or guidance on a contract, we give you a rundown of some of the dues and the don'ts. These are digestible chats on topics that you might hear in our office of an afternoon. Daunting. Not anymore. Here's law clarified.
Speaker 1:Now, seriously, let's be serious for a moment. We, we need to be serious. This is, We do, this is serious stuff because even though we sound very jovial and jokey and there's a serious side to what we'd have to do for our clients. Yes. And sometimes it's not as simple as putting a plan together, discussing tactics and getting you back on track. Mm-hmm.<affirmative>, sometimes your building train has fallen off the tracks. Tracks the carts are smashed. Mm-hmm.<affirmative>, everything's fallen out. Yep. The, It's a disaster. It's a disaster. Yep. So sometimes people find themselves there in that spot. We really hope you don't. Oh my gosh. I know. We really hope nobody ends up in, in a, what we might call a formal dispute. Mm-hmm.<affirmative>. But it happens. It does. I mean, that's why we exist, right?<laugh>. Yes. That's, that, that is right. That's right.<laugh>, we are building in construction litigation lawyers. Yeah. Yep. And it happens. So we exist because things go wrong. Yeah. And as you said in the first podcast, it, it's only a small amount, to be fair, if we actually sat down and work out the percentages, which we're not gonna do, but let's say we did<laugh>, it would only be a small percentage of build, build new builds or renovations that actually go south down this pathway. Yep. Um, and it's still then actually a very slim percentage of those that actually end up anywhere near a court or a tribunal. That's right. Or getting some final determination from a third party mm-hmm.<affirmative>. Um, but it's still our bread and butter. We still see a lot of, lot of it. Yeah. You know, we do. So where do we start? Everything's gone bad.
Speaker 3:<laugh>,<laugh>, everything's gone.
Speaker 1:Everything's gone bad.<laugh>, you have to make a decision about ending your contract.
Speaker 3:Yes. Yes. So shall we just, just to paint a, a picture of what going bad might look like? Mm.
Speaker 1:Um, I love a good, I love a good visual.
Speaker 3:Love a good visual. So going bad might mean, um, maybe the builder has walked off the job mm-hmm.
Speaker 1:<affirmative>.
Speaker 3:Yep. And maybe abandon the site. Maybe, you know, why, maybe you have no idea, but one minute you're building or renovating neck minute, uh oh. He's not there.<laugh>, that's, Yeah. That, that's a sign that our plan of some kind needs to be put in place.
Speaker 1:That's right.
Speaker 3:Um, what's other examples of it going bad?
Speaker 1:Um, it just, it being constructed very poorly.
Speaker 3:Poorly. Yeah. Slowly
Speaker 1:Or
Speaker 3:Poorly. Yep. Slow progress concerns about quality of workmanship,
Speaker 1:Structural integrity.
Speaker 3:Yep.
Speaker 1:It, it doesn't look like the slab has been poured properly because it's cracking and there's a huge gap, or the waterproofing hasn't been put on properly. There's huge, big gaps everywhere. Like real significant problems with the quality of the
Speaker 3:Work
Speaker 1:Yeah. That you as an owner have concerns about.
Speaker 3:Yeah. And you've got a written contract in place we should please mention, Please, please
Speaker 1:Do, please
Speaker 3:Do. But you've got a written contract in place. It says things like, the project is to be completed by this date. Mm-hmm.<affirmative>, um, by this timeframe, you know, the clock is ticking. Yep. Um, you may or may not be paying a construction loan to a bank. There's financial pressures. Things are getting, you know, quite worrisome. Yes. Yep. So it would be at that, that would<laugh> that would be a situation where we might describe it as going bad. Yes.
Speaker 1:<laugh>. And at that point, again, as we've said multiple times, get advice early. Mm-hmm.<affirmative> don't think, Oh, it'll be fine. They'll come back to site, they'll finally answer my email or, or something called happen.
Speaker 3:I guess that's another one. They start ghosting you.
Speaker 1:Yeah. They start ghosting you
Speaker 3:Not returning your calls or your emails or text messages. They start ghosting. You see,
Speaker 1:Just like a relationship, just
Speaker 3:Like a, This is a dating podcast.
Speaker 1:Yeah, it is. Yeah. We should double down on that.<laugh>. Um, that's the time where, pick up the phone. Yes.
Speaker 3:Tell to a
Speaker 1:Lawyer, tell someone, talk to a lawyer, talk to us. Say this is happening. What are my options?
Speaker 3:What are my options? What are my obligations?
Speaker 1:What can I do? What can I
Speaker 3:Do? Can
Speaker 1:I do? And sometimes
Speaker 3:So important to understand that.
Speaker 1:Absolutely. Um, and sometimes that advice is unfortunately terminate your contract. Bring the contract to an end. Yep. And, and every contract, whether it's a standard form one or whether it's the builder's own contract, should have mechanisms in it for how you bring a contract to an end.
Speaker 3:How do you terminate it?
Speaker 1:Um, and there are a couple of different ways that that can happen in every situation is individual and different mm-hmm.<affirmative>. Um, but we can, we can help
Speaker 3:With that. We can help. And I think the other main point about this stage, this, do I end the contract or not stage and reiterates the importance of getting good, you know, legal advice is you really need to understand the risks of taking that step. Yes. That, that's, it's a big step to take. You're, you're effectively saying the contract's at an end and you are locking the builder off the site. Yeah. Effective. Well, well, that's what you're doing. Yes. You're kicking the builder off the site. Yes.
Speaker 1:Um, and some of those risks might even be that you don't get legal advice or you get legal advice from a lawyer who doesn't necessarily specialize in building a construction law. You might actually terminate the contract incorrectly. Mm-hmm.<affirmative>. And that's, it happens unfortunately from time to time, that can also have a massive impact on what your next step
Speaker 3:Is. Yeah, exactly.
Speaker 1:Really important.
Speaker 3:Really important to understand the risks and the issues around taking that step. It's not a step that you take lightly mm-hmm.<affirmative> cuz you are at risk of, if it, if a contract is not terminated correctly, you are at risk of being sued. Mm-hmm.<affirmative>, the builder could sue you. Yes. Um, for a number of different claims, which we won't go into the detail of, but you will be at risk of being sued. Uh, and you will also be at risk as well as compromising any claim that you might wanna make through the Q bcc mm-hmm.<affirmative>, the Queensland Building and Construction Commission to have your home or your renovations completed by another builder. That's right. So, you know, you really,
Speaker 1:You might even risk your ability to make claims against your builder.
Speaker 3:Yeah.
Speaker 1:Um, for various different losses or damages as a result of the builder's action or the builder's in action.
Speaker 3:Yeah. So that's terminating a building contract is not a step that should be taken lightly, flippantly, or in the heat of a moment. Absolutely. It's something that you, you really need to think about.
Speaker 1:Yeah. And alongside that, I think because, and I literally just said this to someone today, there is Part of our job is the legal advice, you know, which is the strict legal advice in accordance with, here are your obligations under the contract, can we tick this box? Can we tick that box? Um, but there's also some commercial a advice that goes along with that, which is the sensible risk consideration if I do this, what is it gonna cost me? Mm-hmm.<affirmative> at this point, the discussion about terminating contracts is a very different discussion at, say, for example, the slab stage of your house to the almost practical completion stage. Yeah. It's a, it's a different conversation.
Speaker 3:It's a different conversation.
Speaker 1:<laugh>, the lay of the land is totally different.
Speaker 3:Totally different.
Speaker 1:Sometimes at the very, very end where you're so close, sometimes it's actually a more commercially sensible option to try to work with the
Speaker 3:Builder Yeah. To just massage the project through. That's right. So that you can lawfully get the keys, lawfully, take possession, get, get, get into your house. That's
Speaker 1:Exactly right. A and there might be some things that you still need to have an Archie Bargy about. Um, but
Speaker 3:Archie, it's a bargy that's a technical legal term.<laugh>. It's,
Speaker 1:I wonder if there's a Latin term for the gy.
Speaker 3:Oh, probably. I don't.
Speaker 1:Oh, we could ask our four fathers. Yes. Um, but it's a different conversation. Right,
Speaker 3:Right. It's a, it's a different conversation. Yeah. There's a lot to think about.
Speaker 1:Yep. So, and
Speaker 3:When you are in it, like when it's, when you are in it, you're experiencing that stress. Yes. That heartache, it's very difficult to have a clear mind, to have an objective look Yes. At the situation and go, Right, well this is, these are the risks. It's difficult to think through that. And I think that's where a lawyer, you know, certainly we, lawyers us will talk you through that. Yep. And, and, and because we are one step, we're away from the situation. We can look at the facts, look at the contract, look at the facts, and give that, um, dispassionate objective view of your situation and, and enable you to come up with a plan that suits your risk, appetite and your
Speaker 1:Profile. Exactly. You, you're exactly right. Because we aren't emotionally attached to the project.
Speaker 3:No. We'll,
Speaker 1:We'll hold your
Speaker 3:Hand generally.
Speaker 1:No. Yeah. Generally. No<laugh>, we'll hold your hand. We get that it's emotionally, financially stressful, draining, concerning, um, we'll hold your hand through that. But we are not gonna sugar coat the reality of what those risks are and what the options are. No. Um, and objectively we can offer that
Speaker 3:View.
Speaker 1:Mm. So that you can make a decision. You can make
Speaker 3:A decision and be ready for whatever consequence may follow Mm. From the next step that
Speaker 1:You take. Yeah. Yeah. So that next step sometimes is the Biff, the litigation, the Archie Bargy, Aji Bargy,
Speaker 3:<laugh>.
Speaker 1:Um, but getting in the courtroom and saying things like my objective object, the
Speaker 3:Law and order solution
Speaker 1:In Queensland, we have, um, really two options I guess for people, for homeowners, if they have a legitimate claim, which we can give you advice about. Um, and those options are either the court system, magistrate's court, district court, Supreme Court. Although very rarely I think a residential build ends up in the Supreme Court. Um, or there's also the qca as we call it, but the Queensland Civil and Administrative Tribunal Yep. It has a specialized building list. Yep. Um, and there are forms and, and things that have to be filled out. Processes. There are pros and cons for both. Um, Qcat was initially set up and designed to be the building specialist, if I can use that term, as opposed to chords. Um, but Qcat is a really big beast. Yeah. It deals with a lot of jurisdictions, a lot of lists. Mm-hmm.<affirmative>. Um, and it can sometimes be a bit slow. Mm. Um, it's a, it is a good process. Mm. It allows homeowners, it allows you to work through the dispute. There's a lot of opportunity for dispute resolution, mediation, opportunities to resolve the matter early mm-hmm.<affirmative>. Um, but currently on my last check anyway, Qat was taking up to 62 weeks Yeah. To resolve a dispute. Yeah. Yep. Litigation. I think, um, and again, this might be controversial, but I think I love a good controversy,<laugh>, lay it on us. I think people just think something's gone wrong. I'm in a sue, like, you know, Sue, Sue, Sue. I, I just got a, um, a new car recently and I've been quite clear with the children about, you know, don't do this, don't do that. Like, don't be very careful if anyone scratches my car and my, um, almost seven year old son the other day, something happened on the road and I, I might have said a inappropriate grownup word,<laugh>. And, and he yelled at the car. Yeah. Watch out. If you scratch my mom's car, she'll sue you,<laugh>. Oh. Which is really adorable. But it's just that mindset that something's gone wrong. I've gotta blame someone and I'm gonna sue them. Oh,
Speaker 3:Look. And that's per, that's a, that's a perfectly human response to a situation where you feel aggrieved and wrong. Yes. I don't wanna invalidate
Speaker 1:Oh no.
Speaker 3:That behavioral, those feelings. Cause if someone scratched my car, I'd wanna sue'em too.<laugh>, but<laugh>. But you have to go into that process understanding what that's actually gonna take. Yes. Um,
Speaker 1:Cuz litigation is expensive.
Speaker 3:It's expensive. It's tough, man. It's tough. It is. It's, it's rough and tumble sometimes.
Speaker 1:It's emotionally expensive.
Speaker 3:Yeah.
Speaker 1:It's financially expensive. Yeah. Um, and at the end of the day, you might get your day in court, but you've spent a lot of emotion, a lot of money. You might not necessarily get the outcome that you wanted or that you thought you're entitled to.
Speaker 3:I don't, uh, I can say quite confidently that I have never in all of my years of practice had a client say at the end of a court or a tribunal process, that was the best thing ever. Mm. No one has ever said that. Ever. Yeah. Yep. Even when they may have got 90% of what they want, cuz it's two or three years down the track mm-hmm.<affirmative>, their marriage is broken down. Yep.
Speaker 1:They've had to
Speaker 3:Sell the house, they've had to sell the house cuz they can't fund the litigation anymore. Yep. Or the situation is so traumatic that they actually can't live there like that. That's, that's an experience that some people have. Yes. Tragically. Yeah.
Speaker 1:Um, and, and we say these things not to dissuade anyone because there are, if you have a genuine claim and you have the capacity to pursue it, you absolutely should. Absolutely. Yeah. Um, but I think people do have this misconception that you, you can just easily sue anyone and it'll be a straightforward process. And you know, we've often heard, Oh, that's the, you know, that bit of evidence or that email that's a smoking gun, Like that's my ticket to win. Stuff comes up in litigation that sometimes even the most amazing planning in the world cannot anticipate.
Speaker 3:Well, you're not in control of the process
Speaker 1:And yeah. You are handing the responsibility over to someone else, someone
Speaker 3:Who doesn't know you, a tribunal member or a judge will make a decision for you. You have no control over
Speaker 1:That. Mm.
Speaker 3:Like that outcome. Yeah. You do have control in negotiations. Absolutely. And mediations, successful negotiations and mediations require compromise.
Speaker 1:They do.
Speaker 3:Um,
Speaker 1:And uh, one thing that I've learned, um, and as some of our listeners will know, I started my, um, my career in the mediation sphere. Um, is that when you have a decision made by a third person, a judge, a tribunal member, um, even an arbitrator, sometimes that's a, a relevant or or an appropriate jurisdiction. Um, you're right Kelly. You, you don't have control over it. But not only do you not have control over it, that person deciding your matter can only make certain decisions. Yeah. They only have certain powers under the bit of legislation that determines how they decide these matters. In mediation, you can pretty much agree to anything. Yeah. As long as it's legal.
Speaker 3:And I'm glad you put that caveat on it,<laugh>, I'm thinking, Oh, anything
Speaker 1:As long as it's legal and both parties agree to it.
Speaker 3:Yeah, you're
Speaker 1:Right. The scope
Speaker 3:Of you can resolve a lot of things.
Speaker 1:Yeah. The outcome can be
Speaker 3:Mediation
Speaker 1:Really vast and, and different and individualized. And someone sometimes comes up with a option, a, a resolution suggestion that you might never have
Speaker 3:Thought of. Mm.
Speaker 1:And and you can walk away from a mediation even having compromised, still feeling some sense of justice satisfaction mm-hmm.<affirmative>, because you have had control, you've been able to participate in the decision making, the resolution.
Speaker 3:Yeah.
Speaker 1:So I think, and and this is something that Jessie and I talked about a few times in the toolbox Tuesdays, um, podcast. I think my natural tendency is to see whether there is a resolution possible that keeps people out of
Speaker 3:Court. Yeah.
Speaker 1:Um, for that exact reason. Not only is it more emotionally and financially economical, but people have more control and are often more satisfied. I don't wanna say happy, but they're more satisfied with the outcome because they've done a little bit of compromise. They might have had to give up a few things, but they've got some stuff that they really wanted. Sometimes the court just, or the tribunal just can't provide those things to
Speaker 3:You. Yeah. Yeah. Yeah. And I think, uh, underneath all of what we've just been talking about, if you're in this situation Yeah. Haji, bargy,<laugh>, um, I think it's really port important to be clear about what you want. Yes. Like what do you want? Do you want money?
Speaker 1:Do you want an apology?
Speaker 3:Do you want an apology? Do you want the builder's blood? Yeah. Like, honestly Yeah. What do you, what do you want? Like,
Speaker 1:And being, um, realistic about those expectations. Yeah. Saying I want my house knocked down and, and rebuilt completely. There are times where that might be
Speaker 3:That's an appropriate outcome.
Speaker 1:There are also times where
Speaker 3:That's not,
Speaker 1:And it's never gonna happen.
Speaker 3:That's never gonna happen. No court is ever gonna order that.
Speaker 1:Exactly. So being really realistic about those things I think is important when you are in the situation where you are looking down the long barrel of litigation, um, and weighing up those, those options and risks and pros and cons. Yeah.
Speaker 3:Yeah. Knowing what you want and then we lawyers can come in and, and just give you a bit of and reality test Yeah. Those outcomes. Yeah. Um, and, and come up with a plan on how we might be able to achieve those outcomes for you. Mm-hmm. Or not.
Speaker 1:Exactly. I think too, I I I'll just mention, um, time I think is a really big factor. Not only do you have to make these sorts of claims in a timely manner mm-hmm. Um, but I don't think you can ever anticipate how slowly or quickly they'll get resolved. Yeah. So for example, a couple of years ago we had a matter in the district court. It started in the February of the particular year. It was fully done by the September. Yep. Done in dusted.
Speaker 3:That's, it's
Speaker 1:Pretty quick. Right. That's, that's quick, quite quick. We have other clients who their matter started in 2017. Yes.
Speaker 3:It's still
Speaker 1:Going. Yes. It's almost 2023.
Speaker 3:I'm one of these people who still thinks that it's 2019 so<laugh>,
Speaker 1:But we're now closer to 2023. I know. Um, they still don't have outcomes in their matter. No.
Speaker 3:And they're not even
Speaker 1:Close and they're living in houses that are less than ideal in terms of their construction. Yep. Might be leaking, might be subsiding. And they're literally just stuck and, and sitting and having to wait for an outcome. Yep. And I think that's possibly even more, I don't wanna say depressing, but that's that's even more frustrating,
Speaker 3:Taxing,
Speaker 1:Taxing than the initial frustration that they would've had with their
Speaker 3:Builder. Yeah.
Speaker 1:So again, not to suggest that if you're a homeowner and something's going wrong, you should just put
Speaker 3:Up with her, you should put up with stuff. We're not suggesting that
Speaker 1:At all. No. But you need to get that advice early
Speaker 3:Or invalidating how you feel.
Speaker 1:Oh yeah. Absolutely.
Speaker 3:We're not, we're not suggesting you suppress that Mm. And give up and put up with really poor conduct and a really poor situation. But what we are saying I think is um, Well I hope the message that's being received is if you are at this point, um, it is, it is critical that you seek legal advice. Mm. And just be clear about what's gonna happen next. Yep. What, what what you need to do next
Speaker 1:And what your options, what
Speaker 3:Your options are
Speaker 1:And expectations are.
Speaker 3:Yeah. Yep. Mm. Yep. Have a, a lawyer help you with that.
Speaker 1:Yep. And what, and figure out, out of the possible paths that you could start walking down,
Speaker 3:This is the one I'm taking That's
Speaker 1:Right. And
Speaker 3:Comfortable
Speaker 1:With this and I understand the, you know, what's gonna come at me as I walk down this path.
Speaker 3:Yep. Yep.
Speaker 1:Really important things to consider. Cause as you said right at the start, it's difficult. It's not a decision that you take lightly.
Speaker 3:You don't take it lightly. No.
Speaker 1:Um, but we can hold your hand and walk down that path with you Yes. And support you through that process and take some of the stress out. Mm.
Speaker 3:Yep.
Speaker 1:And I mean that's the role of law's, right?
Speaker 3:That's what we do. Yeah.
Speaker 1:Cause
Speaker 3:We, I mean we can do the igy bargy too.
Speaker 1:Yeah. We like a bit of a Biff
Speaker 3:<laugh> bring back the Biff
Speaker 1:Sometimes I wonder, oh imagine if the way to resolve disputes was just to put two people in a boxing ring and let them go at it
Speaker 3:Hand to hand combat.
Speaker 1:Yeah. Or even just rock, paper, scissors.
Speaker 3:Yeah. You're always nicer.<laugh>
Speaker 1:Unfortunately,
Speaker 3:I dunno where my head's at<laugh>
Speaker 1:Unfortunately, sometimes we have to use strongly worded letters and
Speaker 3:Yes, it's all part of
Speaker 1:It. Strong tactics.
Speaker 3:Again, we're not suggesting you put up with a poor situation.
Speaker 1:No, definitely.
Speaker 3:If you are on the right side legally of a situation, then by all means pursue it. Yeah.
Speaker 1:Like
Speaker 3:Yes, but pursue it. Understanding what that means. Yes. In terms of time, cost, energy. Yeah. Risk.
Speaker 1:Also, just to be clear, we're not saying that you should take matters to your own health either, because then you may need another kind of lawyer and we definitely can't help with
Speaker 3:That. I think we really need to put a big disclaimer over the end of this podcast episode.
Speaker 1:Our resolution suggestions are
Speaker 3:Theoretical
Speaker 1:Only. This
Speaker 3:Is general legal advice. Only get specif legal advice for your situation.<laugh>, how's that for a disclaimer on the fly? Yeah. Yeah. That's really, Does that work? Yeah. Please don't take matters into your own hands.
Speaker 1:Please don't.
Speaker 3:Please don't.
Speaker 1:Let's deal with it. Let's help you
Speaker 3:Deal with it. Can someone press stop on this microphone?<laugh>?
Speaker 1:I think we should. Cuz I think that's done.
Speaker 3:Oh, we're not laughing at we're not laughing at these situations either.
Speaker 1:Yeah. They are really stressful. Yeah. Yeah. But that's why getting advice early, we can help you that, that that's the service that we can offer mm-hmm.<affirmative> to guide you through a very difficult time, hopefully as unscathed as possible.
Speaker 3:Yep. Yep. I think that's a good place to end.
Speaker 1:Yeah, I think so too. Right.
Speaker 3:There we
Speaker 1:Go. Episode four.
Speaker 3:Episode
Speaker 1:Four. Thanks
Speaker 3:Kel. No worries Marty. Thank you. Good chat.
Speaker 1:Thank you. Yeah. And uh, we hope everyone has enjoyed owners' hours so far. Hope
Speaker 3:It's provided some really valuable information.
Speaker 1:Yeah. And, um, as always, our information, contact information is in the link in the show notes, um, or on our website. So just jump on, give us a call, drop us an email. We're always having happy to have a chat. A1 minute conversation could potentially save thousands and thousands of dollars. Yep. And a little energy Absolutely. I'm not even joking about. Okay. Okay. Right. Awesome. Thanks. Bye. Bye.