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Building disputes and the need for a building tribunal in South Australia.


Andersons' Commercial Partner Felix Hoelscher was quoted in the following article published in the Advertiser Newspapers discussing building disputes and the need for a building tribunal in South Australia.

Let’s fix unbelievably expensive building dispute process’: SA Building inspector Chris Short

Rebecca Baker, Consumer affairs, The Advertiser

October 8, 2018 1:00am

THERE has to be a better place than a courtroom for homeowners and builders to resolve disputes, says a veteran South Australian building inspector.

“(Building dispute cases) are incredibly expensive whether you are the builder or the owner, the good guy or the bad guy,” says Blue Chip Consultants principal Chris Short.

Mr Short, a former builder, has worked as a building inspector in Adelaide for three decades and inspects up to 200 building defects each year.

He believes SA would benefit from a building tribunal, similar to what Queensland and Victoria have.

“Building disputes are unbelievably expensive to run and particularly time-consuming for courts to deal with,” he said.

“We clearly need something like a building tribunal in SA where you have a small panel of experts and a magistrate or judge who deal with all building disputes, regardless of size … (and who understand) building jargon.”

Adelaide-based commercial lawyer Felix Hoelscher agrees, saying building disputes can be among the most expensive to run behind medical negligence claims.

“Yet they are often commenced in a jurisdiction which gives the successful party almost no refund on their costs,” he said.

Building blunders. There has to be a better place than a court to hear disputes, says Adelaide building inspector Chris Short. Picture: Supplied

Mr Hoelscher says it typically takes 12 to 18 months — sometimes longer — for a building dispute to be heard in the magistrates or district court.

“Homeowners usually need to engage lawyers to conduct their case and experts to give evidence in respect of defects and rectification costs,” he said. “But there is no guarantee at the end of it all that the builder will be able to reimburse the homeowner for those expenses, or to pay damages or perform rectification work.”

He’s also advocating for an overhaul of building indemnity insurance to protect homeowners who are left out of pocket if a builder dies, goes missing or becomes insolvent.

“(It) is usually for a sum far less than the project cost, especially once experts’ costs and legal fees are taken into account,” Mr Hoelscher said..

“Given that the cost of (the insurance) is usually passed on to the homeowner, it would be of benefit to make the level one which covers all construction and dispute costs, rather than a statutory amount.”

How one home was left following a building dispute.

“Further to that, sometimes the builder does not take out the insurance at all and the homeowner is then left without any fall-back protection”

The Advertiser has sighted a letter to SA politicians seeking amendments to the Building Work Contractors Act (1995) where “the consumer may make a complaint against the builder outside of the framework of personal litigation” — the homeowners extending an invitation to visit their home to view the living conditions they’ve endured for more than two years, after a build allegedly went wrong.

SA Master Builders Association CEO Ian Markos doesn’t agree a building tribunal is needed. “Industry associations such as Master Builders SA provide conciliation services, and often courts will mandate conciliation conferences and mediation before litigation can proceed to trial ... most of these mechanisms focus on low cost and speedy resolution, they allow access to technical experts to resolve matters,” he said.

A SA Government spokesperson said no changes were “currently under consideration.”