The Building and Design Practitioners Act 2020 was a revolution in the way defects related claims in relation to home building (and in fact, in relation to commercial buildings) projects are brought in NSW.

The NSW Supreme Court has held time and again that many of these claims are quite ‘defective’ because of their pleading – because of the way that the claim has been drafted.

Our lawyers are experts in drafting these claims and in defending them.

As we have said in other publications on these pages, it is extremely important that these claims (or their defences) are correctly and logically pleaded, otherwise the claimant, usually the owner, will face either an uphill battle in proving the claim effectively, or an application for summary dismissal, or in the least, an application for the striking off of the pleadings (all with costs).

The worst-case scenario of course will be an embarrassing defeat in the final hearing.

That’s why the pleadings need to take into account all of the following factors (this is not an exhaustive list):

• What was done;
• How was it done;
• How and why it was defective;
• What do various aspects of the expert evidence say about the defects and how they appeared;
• What does the expert evidence say about what was done which shouldn’t have been done and what was not done which should have been;
• What precautions were missed;
• What else should the builders, or their subcontractors, have done which they missed;
• How was the developer involved, and what did they do, not do;
• What kind of supervision was carried out if any, were there any notes left around, is there any evidence of proper supervision;
• Is there any evidence from foremen, site managers/coordinators, supervisors, project managers, construction/operations managers etc.;
• Related to the supervision question, what did the superintendent do/didn’t do and was there one?
• What aspects of the DBPA were breached; what about Australian Standards, or the Building Code of Australia (BCA) regulations;
• Is there any factual (non-expert) evidence available about any of this;
• were there any other aspects of the case to which due consideration should be given;
• How can all this be effectively integrated within a properly drafted pleading; and
• What defences are available to any of these claims based on all the material available, including expert evidence.

Our lawyers have considerable experience in drafting these pleadings including the Supreme Court ‘list statements’ (claims) or ‘list responses’ (defences).

Our lawyers have seen enough of these claims on both side of a claim and can effectively prosecute or defend all DBPA (as well as Home Building type) matters.

Based on the material our lawyers can also advise on adding parties, making cross-claims etc. as the circumstances of each particular case properly require.

As we emphasise here, there are always potential traps in drafting these very important documents, of which traps the client should be made aware. We make sure of that.

At Papallo Kouchoo Lawyers, we do our utmost to uphold your rights in order to ensure that all your rights are properly safeguarded.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.