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LexisNexis Pacific 1 Marcus Beveridge / Tina Hwang (Principal/ Solicitor) Queen City Law Better Building Blueprint : Build it right first time.

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Presentation on theme: "LexisNexis Pacific 1 Marcus Beveridge / Tina Hwang (Principal/ Solicitor) Queen City Law Better Building Blueprint : Build it right first time."— Presentation transcript:

1 LexisNexis Pacific 1 Marcus Beveridge / Tina Hwang (Principal/ Solicitor) Queen City Law Better Building Blueprint : Build it right first time

2 LexisNexis Pacific 2 Slide title BACKGROUND Better Building Blueprint: Build it right first time Part I: Background Part II: Accountability Part III: Written Contracts Part IV: Disclosure & Financial Surety

3 LexisNexis Pacific 3 Slide title BACKGROUND Better Building Blueprint: Build it right first time Part I: Background

4 LexisNexis Pacific 4 Reality of the Industry Research carried out by the Department of Building and Housing in 2010 found in its study that among a sample of consumers who had purchased significant building work in 2005 (valued at $50,000 requiring building consent): -31% had disagreements with their building contractor, -19% had a major dispute. Slide title BACKGROUND These major disputes consisted of: -timelines not being met (37%), -non-completion of the project (33%), -non-compliance or defective work (56%) -and poor workmanship (55%). (*note each dispute consists of more than one element)

5 LexisNexis Pacific 5 Legislative Background Building Act 1991 Building Act 2004 Changes in 2005, 2007, 2008 and 2009 Public Consultations in February – April 2010 Building Amendment Bill (No 3) Building Amendment Bill (No 4) Slide title BACKGROUND

6 LexisNexis Pacific 6 Building Amendment Bill (No 3) This Bill proposes and includes: -enhanced accountability under the Licensed Building Practitioners scheme; -the introduction of a code of ethics for Licensed Building Practitioners; -risk-based consenting (streamlining the process and putting further liability on Licensed Building Practitioners); -an owner / builder exemption under restricted building work on owner- builder exemption under restricted building work (to allow for DIYs); -enhancements and further clarification to the building warrant of fitness regime; and -other minor technical amendments. Submissions for this bill has closed and this legislation is expected to pass this year. Slide title BACKGROUND

7 LexisNexis Pacific 7 Building Amendment Bill (No 4) This Bill was approved by Cabinet on 2 August 2010 and is expected to be out later this year. It is said to propose and include: -mandatory written contracts for all building work over $20,000.00; -a provision which requires builders to disclose information (for example details about their skills, qualifications, licensing status, track record, financial back-up or insurance and dispute history); -new general remedies (and existing warranties) which apply for ten years; and -a requirement for builders to fix any defects in their work within 12 months. The legislation is being drafted and it is anticipated that the Bill will be introduced later this year (approved by Cabinet on 2 August 2010) Slide title BACKGROUND

8 LexisNexis Pacific 8 Better Building Blueprint: Build it right first time Part II: Accountability Slide title ACCOUNTABILITY

9 LexisNexis Pacific 9 Background Requirement to clearly state who is accountable for what Previous undue heavy reliance and responsibility by local authorities (on average local authoritties were paying 40-70% of costs involved in the weathertightness crisis settlements (PricewaterhouseCoopers report to Department of Building and Housing, Weathertightness Estimating the cost July 2009) ) Slide title ACCOUNTABILITY

10 LexisNexis Pacific 10 Background The amendments to the Act will make it clear that: -designers are accountable for ensuring that their plans, specifications and advice will meet the requirements of the Building Code -builders are accountable for building to any approved plans and specifications (if approved plans) -owners of building work are accountable for getting any necessary approvals. -building consent authorities are accountable for checking that others are doing their part Slide title ACCOUNTABILITY

11 LexisNexis Pacific 11 Licensed Building Practitioners Key element to the Better Building Blueprint: Build it right first time scheme Currently have 9,000 licensed (aim for 20,000 by March 2012) Competence based cf qualifications based Restricted Building Work (March 2012) Slide title ACCOUNTABILITY

12 LexisNexis Pacific 12 Risk Based Consenting Building works will be classed into four categories whereby: -Lowest-risk building work would not need a consent. -Low-risk building work (such as a simple, one-storey house) would go through a quicker and simpler consenting process with fewer council inspections and more reliance on the skills of licensed building practitioners to get it right first time. -High-risk, more complex houses would continue to go through the current approval and inspection process. -Complex, major commercial building work would go through a simpler process than it currently does, recognising the experience and skills of those involved and that commercial contracts for major projects include quality control. Slide title ACCOUNTABILITY

13 LexisNexis Pacific 13 Joint & Several Liability Disproportionate Liability Deep Pocket theory Risk averse behaviour by local authorities Problems with proportionate liability scheme Problems with mandatory insurance scheme Slide title ACCOUNTABILITY

14 LexisNexis Pacific 14 Better Building Blueprint: Build it right first time Part III: Written Contracts Slide title WRITTEN CONTRACTS

15 LexisNexis Pacific 15 Background $10, recommendation cf $20, Fundamental basis of the mandatory contractual requirement was to ensure that accountabilities are clear, supported by information disclosure, clearer obligations and new legal remedies Consumer awareness Tort of negligence cf Contractual claims Slide title WRITTEN CONTRACTS

16 LexisNexis Pacific 16 Mandatory Contents Under the new Bill, the construction contracts will have to include: -agreement to repair, replace or compensate for defects within 12 months of completion (provided there has not been misuse or negligent damage); -warranties contained in the current legislations; -the process that will be followed if a dispute arises; -details of what, if any surety or insurance backing is available to cover the cost of fixing any problems (to be discussed in Part IV); and -information before the contract is signed about the skills, qualifications and license status of those who will do the work and any publicly-available information about any disputes (for example the results of any court judgments). Slide title WRITTEN CONTRACTS

17 LexisNexis Pacific 17 Warranties / Remedies / Disputes Implied warranties in Building Act General Remedies 12 months defects liability period Slide title WRITTEN CONTRACTS

18 LexisNexis Pacific 18 Better Building Blueprint: Build it right first time Part IV: Disclosure and Financial Surety Slide title DISCLOSURE & FINANCIAL SURETY

19 LexisNexis Pacific 19 Background Accountability / responsibility / enforceability Disclosure Requirements -pre-contract disclosure detailing skills; -qualifications and licensing status; -their dispute history; -offer of surety or insurance backing for their work; and -information on company including trading history Consumer Awareness Slide title DISCLOSURE & FINANCIAL SURETY

20 LexisNexis Pacific 20 Thank you very much!


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