Why a Builders Best Defence to a Defect Claim Is Their File
Builders: The Best Defence to a Building Defect Claim Isn’t a Lawyer. It’s Your File.
With the establishment of the Building and Plumbing Commission (BPC), building defect disputes will change. They will be more fact driven sooner, don’t expect drawn out VCAT processes at BPC.
So one thing stays the same - great records are critical like before but another thing has changed - great records are going to be even more relevant early in a dispute.
As BPC will have greater powers and impetus to prosecute and to issue rectification orders your ability to prove your position will not be left for trial in 5 years time!
Records will be relevant sooner and the strength of your case will most likely be visible and identified earlier in the process.
I expect builder’s records will be more important sooner in establishing building practices, what happened and who did what. How else can you point to the engineer’s advice if you don’t have written evidence? What about seeking [review by VCAT under the new regime](/articles/20250908-a-new-building-dispute-resolution-regime-is -oming-to-victoria/)?
Documents and written evidence will be so important sooner.
Think about it many disputes that went through DBDRV didn’t resolve and were issued a certificate of conciliation. Off they went to VCAT if they had the financial value worth pursuing.
What was said? Who approved the variation? When was the issue first raised? Did the owner refuse access? Was the defect caused by another trade? Did the owner alter the works after handover? What did the RBS say or do?
Years later, nobody may remember.
BUT
The builders who will succeed under the new regime will not be those with the loudest arguments or the more nous to delay and deny. They will instead be more often the ones who can produce the evidence earlier.
Think about it, we will also see prosecutions more often whilst a civil litigant who probably made the complaint to the BPC watching I. The wings and and waiting for evidence to fall their way.
Builders will need to be ready to know how to deal with criminal and civil matters and the interplay of the two!
Plus it becomes so important to protect your bottom line and reputation with documentation like:
- Site photographs taken throughout construction, not just at completion.
- Daily site diaries recording weather, trades on site and significant events.
- Written confirmation of owner instructions and variations.
- Records of delays, access issues and owner-caused interruptions or arranged works.
- Emails confirming discussions rather than just relying on phone calls. Plus file notes.
- Evidence of inspections, testing and compliance.
- Records showing when defects were reported and how they were investigated.
These records don’t just protect builders. They also help identify where responsibility really lies whether that is a subcontractor, designer, engineer, building surveyor, supplier or owner.
The best builders wont be those who just prepare for disputes after they receive a complaint. They will be those that prepare every day.
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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