Austman said
Nothing to do with following the law. Nothing to do with the developer (because it actually it has to be the builder in VIC). We understood all of that.
It’s the process of getting repairs done if some owners want to pursue the builder’s warranty insurance before paying lots of money themselves. And that’s a fair enough stance too – it is supposed to work that way – after all, the OC didn’t cause the building defects, the builder did!
So you’re having a go at me for pointing out how it actually works here in NSW rather than how it’s supposed to work? And yet you’ve discovered that in your situation waiting for the warranty issue to be resolved was a waste of time and probably money too.
In this regard, there is very little difference between NSW law and Victorian law which says:
46. Owners corporation to repair and maintain common property
An owners corporation must repair and maintain—
(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common roperty or its enjoyment.
That’s an absolute and unqualified legal responsibility and that’s why Bodies Corporate in Victoria have to think first about fixing defects and think afterwards about who should pay for it and how you are going to get them to do that. (By the way, if anyone knows of case-law that disproves this PLEASE let us know.)
Plenty of owners In the no-mans-land of defect disputes think it’s only right that you get the money from the builder/developer first and fix the defects later. And some members of ECs use the idea that they are in negotiations with the developers or builders as an excuse for not fulfilling their statutory duties (at least until they have sold up and it’s someone else’s problem).
So my advice for any owner who’s trapped in a defective building is to demand that a program of works is sorted out, regardless of the progress of any defects claim. If the EC or OC refuses to do that, take them to the CTTT (in NSW) and ask that an order be made against them to fulfill their statutory duties.
If you are on an EC and your building has defects, get a reliable building consultant (like our sponsors IBC) to do an assessment of the building defects and take that report to the developers and ask them to fix them.
When they refuse, raise a loan to get the work done while pursuing the defects claim through whatever channels are available to you. The Building Consultant will become your project manager and they will make sure everything is done by the book.
At least then if you do end up in court against the developer you will have irrefutable evidence that things needed to be fixed, and how much it cost when they were fixed and that the developer refused to do it which is why you went ahead and did the work yourselves.
And if, because the system is stuffed, you end up not getting your money back, at least your defects have been repaired which is what you would have ended up doing in the first place.
The Owners Corporations’ (and, in Victoria, Bodies Corporate’s) prime responsibility is to maintain and repair common property – not necessarily to sue developers and builders. Individual owners who want insurance money first and defect rectification later need to have the facts of life explained to them and, if need be, feel the weight of a CTTT order to convince them of the error of their ways.
At the end of the day, you have to fix the defects – you may as well get on with it and use it to your advantage if you possibly can.