WA Developer Blaming Builder for Error with Rendering Walls

[Wingnut]

Prior to building our home, the land developer rejected our plans and forced us to render any wall that was street facing. After our house was built, I enquired about a neighbour not having to render the same walls and was informed they made a mistake when processing our plans. I have requested that the developer (who has admitted being at fault) fix the mistake and remove the rendered walls and replace with face brick as per our original plans. Developer has been very condescending regarding this issue and initially offered me a $50 Bunnings voucher which was subsequently increased to a $250 Bunnings voucher for me to effectively go away.

Developer recently provided me with hand written note saying they informed our builder we didn't need to render everything that was rendered. However, after receiving original copies of documentation trail between Developer and Builder, no such note exists and all correspondence from Developer was electronically stamped, nothing hand written in any correspondence. Original copies were received off builder after I emailed both developer and builder to provide me with original copies of all correspondence. Developer has not responded to the request (basically I think they got caught with their pants down after fabricating a note to try and blame my builder).

As the developer is not willing to fix the mistake, where should I go from here?

Is the developer breaking any laws by fabricating documentation to pass the blame onto my builder?

 

[Tracy B]

Hi Wingnut,

The developer is not breaking any laws by fabricating documentation unless this documentation is submitted to court or government authority.

Have you tried giving the Building Commission of Western Australia a call to enquire about the merits of your position or lodge a complaint? It could be worth giving them a call.

As for whether you have a cause of action against the builder/developer:

• Contract: have a look at your contractual agreement with the builder/developer, is there a clause that covers "accurate advice" or "due care, skill and diligence"?
• Consumer law: contact the Department of Commercial WA to enquire whether you have a ground under consumer protection, also have a read of "Australian Consumer Law Guarantees" and "Protection: What to do it your Australian consumer guarantees are breached"
• Negligence: however, this may be a difficult ground to argue as there is no recognised duty of care between consumers and their service providers

 

[Wingnut]

Tracy,

Thanks for the reply and the information, some long nights ahead of me reading policies.

I had contacted both the Department of Commerce and Building Commission and they advised that it's outside their jurisdiction. I will do as suggested and read through the contract I signed with them for the purchase of the land. What impact do the clauses for accurate advice or due care, skill and diligence have on my taking them to court to revert the changes in our house?

Given all the written evidence I have, (admission of fault, offer of compensation (albeit a Bunnings voucher), falsifying evidence, blaming builder who in return have provided written evidence to support otherwise), is there anything that would basically void them of any responsibility with regards to paying compensation.

Cheers,

Wingnut

 

[Wingnut]

Tracy,

If I was given the wrong contract to sign, (given the various developer requirements throughout the Ellenbrook estates), would this void any of their 'we are not accountable for compensation' clauses that are usually written into contracts. Would this also open up a possible class action given that everyone in our estate would have signed the wrong contract as well. I would expect that I am not the only in our estate that built their homes based on incorrect developer requirements, causing more that one person to change the exterior of their homes to meet these incorrect developer requirements.

Cheers

 

[Tracy B]

Hi Wingnut,

Why would you say you signed an incorrect contract? Did you seek independent legal advice before signing? Are you saying that some statutory protection clauses for developers were limited or removed from the contract and as a result, some clauses in the contract is inconsistent with legislation?

The advice to read your contract carefully is because even if they admit fault and offer some form of compensation, if they are excluded from liability in the contract, then they are really just offering it out of good faith and may be free to withdraw any offers and deny all legal liability. Therefore, your most direct cause of action would be from a contractual clause. If not, you might be able to argue implied contractual term, but this is not as straight forward and easy as breaking an express clause. Given the complicated nature of this, I suggest you speak with a construction/property lawyer. Have you tried contacting your local community legal centre to give a preliminary assessment of the merits of your case?

 

[Wingnut]

Tracy,
At the time of signing my land contract, I was unaware that the developer had made a mistake regarding the listed developer requirements that we had to abide by when building our home. This error only came to light as one of our neighbours that built 12 months after us had a different set of developer requirements to abide by when building their home. The major difference between the two contracts (each with differing developer requirements) from what I have found is the exterior design/look of our houses. Given the developer is no longer taking my calls (after questioning the authenticity of plans submitted to my builder), I don't know the true differences between the contract I signed, and the one I should have signed with the correct developer requirements listed.

This is why I am unsure what happens if the contract I have signed was the wrong contract. Would the developer still be excluded from liability if that was a clause on the contract I have signed, even though it was the wrong contract (if you know what I am getting at here).

Thanks for the local community legal centre info, will have a chat with them as soon as I can to gain a better understanding.

Regards

 

[Tracy B]

Hi Wingnut,

How did it go with your local community legal centre?

First, find out the nature of the building development requirements. Are they optional guidelines recommended by a professional body, are they council recommendations, are they regulations or are they law with legal standing? Once you know the nature of the requirements, you will know whether your particular house is able to deviate from the recommendations (like your neighbour) or if your property is different in some way.

Second, the "mistake" in your case will not be enough under contract law to bring a case under mistake. You may have a course of action in negligence (negligent advice) or breach of duty of care or an implied term to provide accurate and complete advice (consumer action). If you do indeed have a course of action, and your other neighbours all suffered the same incorrect advice, you may use the threat of a class action to get the builders/developers to talk and negotiate some sort of settlement.

 

[Wingnut]

I am having difficulty with finding much information out without actually paying for the legal advice. The developer has contacted me and requested a meeting to resolve this issue which is good but I think they are requesting this to save their own bacon. They recently provided me with partial plans blaming the builder for the mistake but when I requested original copies of all documents sent between the parties, the developer would not forward anything while the builder provided everything, which lends weight that the plans the developer sent me were fabricated to lessen their area of responsibility.

The question I have here is, if this went to court and they were found to be guilty of fraud, what penalties would apply to the developer? I had a quotation for the work to be completed and whilst the final quotation is being drafted, they said it will be over $150k to complete the work. Given I only thought it would cost $30k at most, I am gobsmacked at how much it costs, and everything that was involved including possible structural issues if I went through with the work.

Regards

 

[Tracy B]

Hi Wingnut,

From the information you provided, there does not appear to be an action in fraud. Fraud is quite serious and requires showing dishonesty (intentionally deceiving or withholding information). It appears to be more of a case of negligence, where they gave incorrect advice which you relied on to your detriment. However, there is no readily assumed fiduciary duty between a builder/developer and customer. Which means, you will need to prove that one existed through a relationship of trust and confidence and that your reliance with reasonable. This might be difficult to show if you are self-representing since there are policy reasons why courts are unwilling to infer a fiduciary relationship between the service provider (except professional service providers such as doctors, financial advisors and lawyers) and customer. As such, it is extremely difficult to estimate (i) how likely you are to succeed, and (ii) how much compensation the court will award you in the event you do succeed. It will come down to the chain of correspondence, what was actually said, and the nitty gritty of the facts (including the what is on the plans).

Alternatively, there may be a breach of Australia Consumer Law, in particular, the consumer guarantees for service.

Have you tried ringing around different lawyers specialising in building/construction? Many law firms offer free preliminary consultation to let you know if you have a cause of action or not. It may be worth attending a few preliminary consultations to suss out your position.

 

[Wingnut]

Hi Tracy,
The fraud issue relates to a copy of my building plans that the developer sent me a couple of weeks ago, in which the developer had highlighted areas of the house that did not need to be rendered and claimed that those were the plans that were sent to my builder. As it was turning into a he said/she said scenario between the developer and my builder, I sent an e-mail to both of them requesting that they send me a copy of all the correspondence between the parties, including all plans, cover letters and annexes.

My builder forwarded all the e-mail correspondence from the developer and the plans they received from the developer clearly stated that we were required to render everything. You could tell from the plans my builder sent me, that the developer had photocopied one elevation (there were 5 elevations on the plan) and modified it's content to point the blame (or a significant part thereof) on my builder. I confronted the developer about these allegations to which I received no reply and they refused to send me the original documents (which would obviously show the same as the builders). I understand that until these documents are actually submitted as evidence in court, they cannot be done for fraud, (which is why I assume they now want a meeting to resolve this issue after 3 weeks of silence), but I am interested to know what the penalties could be if it was presented as evidence in court and they were charged for fraud (or any other offences that could result from such deceitful action).

Regards