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BUILDING CONNECTION
SUMMER 2016 55
i. attachment of a chain wire fence around a tennis court;
and
j. erection of a mast, pole, antenna, aerial or similar
structure.
The fines can be hefty. It is possible for the fine to be in
the order of $100,000 or more and in a prosecution you
can be ordered (unless you agree to) to pay part of or all of
the prosecuting authority’s costs (the Victorian Building
Authority). These fines can increase from year to year.
If all this is not serious enough, a report can be made
(which sometimes does in fact occur) alleging misconduct
to the Victorian Building Authority. The author has recently
acted for a ‘builder’ in such a situation. This type of case
typically arises where the works done are allegedly defective
and the home owner feels aggrieved at the situation and
‘plots revenge’ as they are in a sense entitled to do by
‘dobbing in’ the builder.
Of course, if you are a home owner
(as of course, builders also are)
the case of building works being
done by an unregistered builder has
consequences too. Not only does
the unregistered builder not have
insurance cover for such works, but
he/she could be left to ‘carry the
can’ as far as rectification costs are
concerned. The home owner has a
real concern though as they are not
covered by such insurance (unless of
course they have their own separate
insurance cover).
Related ‘consumer protection
type issues’ may also arise in these
cases. That is, it is common for the contract to not be in
writing, as they are often required to be. There is therefore
no written record of the agreement reached between the
builder and owner, increasing the risk of disputes. In such
cases, other requirements or the lack thereof often go hand
in hand, such as a lack of a required building permit for the
works. A great deal of building work, as many readers will
know, requires a building permit.
These things bring consequences for the builder. The lack
of a required ‘major domestic building contract’ for works
over $5000 can also result in prosecution. Even arranging as
‘head contractor’ relevant works can result in prosecution.
In addition, hence this article may assist; it is true to say
that ‘ignorance of the law is no excuse’.
The ‘scope’ of works which can bring trouble to an
unregistered builder include not only ‘new’ construction
work but also repairs, demolition, renovations and
extensions. Professional assistance or an inquiry to the VBA
should be made if one is in doubt as to what relevant building
works are covered or not covered by this situation.
There is a lot of what may be termed ‘handyman work’
which one could be mistaken for thinking may not be the
subject of a requirement to be registered but which in fact
are.
As stated, even arranging and not directly carrying out,
and or drawing of plans and specifications in relation to
domestic works, can require one to be registered. However,
importantly, due to the ‘protection’ gained to the builder
or subcontractor, a ‘subbie’ to a registered builder is not
required to be registered.
Builders and the public can check the builder registration
status of a builder on your state’s building authority website
for free. Misconduct by a builder can also be checked.
In a sense there is an onus on an owner to check the
builder’s status if they intend on using a particular builder.
However a magistrate will likely not be interested to
hear in a ‘plea’ by the builder in a
prosecution that the home owner
didn’t check their status. In that
sense, the onus shifts completely to
the builder to make damn sure they
are registered, and registered in
the appropriate category or class of
builder for the relevant work.
Of course, from an owner’s
perspective, if the alleged building
practitioner is registered, the
likelihood of better quality work is
increased where the practitioner is
registered.
Again from a builder’s perspective,
it is simply not worth the huge risk
to not renew your registration when
it comes up for renewal and continue to do relevant building
work.
Different requirements apply altogether to owner builders;
again professional assistance or the advice of your local
building authority or Consumer Affairs should be sought.
As always, there are traps and tricks in this area so if you
are unclear, it is best that you seek professional advice in a
timely fashion.
THE LACK OF A REQUIRED
‘MAJOR DOMESTIC
BUILDING CONTRACT’
FOR WORKS OVER $5000
CAN ALSO RESULT IN
PROSECUTION.
Contact:
Paul Cott LLB (Hons), Grad Dip Legal Practice, LLM is a
Senior Associate Lawyer. Working in commercial litigation
for a number of years has seen Paul amass a wealth of
knowledge and experience in building and construction
litigation which he is willing to share. Paul is also a member
of the Building Dispute Practitioners Society.