I thought I might do a run through of the issues that I’ve had the most number of calls about. It makes interesting reading!
I can’t count the number of times I have said on the phone to a member who was having trouble getting paid: “Are you issuing your invoices as payment claims under the Construction Contracts Act 2002?” And: “Are you providing your client with the Additional Information for Residential Occupiers required by the Regulations?”
It is a concern that the Act has been in place for nine years now, and that while the RMBF has run seminars over those years, there are still members who don’t know what it is and what it can do for them.
If you are scratching your head right now, then please log on and have a look at the resources available to you.
The other issue from the “hit parade” of members’ questions that crops up a lot is dealing with trusts. They are everywhere and take all manner of forms, and there is still a lot of confusion about them.
For example, if a trust is building a house does that make them a residential occupier? The answer from the courts has been yes and no. The best advice we can give is to treat it as if it is, and ensure you use the right contract and the right clauses to ensure you have the protection that the CCA does not give to a residential contract.
We hope that in the months to come the CCA will be amended to remove the distinction between residential and commercial building contracts, and that this issue will disappear.
Another issue I’ve had the most interesting discussions about is weathertightness — regarding claims against members, and members who are involved in remedial work.
If you are served with a claim, then ignorance is not bliss. It will not go away if you ignore it. The best advice is to engage with the process and have a strategy depending on the facts of the case and who else is around the table.
Remember that we are here to help you through the process, along with your nominated counsel.
If you are going to be involved in remediation, ensure you “bone up” on the ways and means of doing so, and ensure you have the right clauses in your contracts to ensure you are covered in the event that more work is unveiled when you start pulling the cladding off.
The Building Act Review has been, for me, the most interesting and challenging part of the past 18 months. It has been painfully clear when reading some of the Department of Building and Housing (DBH) publications that the writers have no clue how the business of building works in real life.
Also, how many and varied the contractual relationships can be, and that there is often not a “principal building contractor” — it may be that the owner has kept that role for himself.
It is also clear that the attitude of government is that the builder is always wrong, that the consumer is always right, and that the designers’ and product manufacturers’ role is simply to dream up sexy looking stuff with no concern as to how it might actually be constructed and perform in the long term.
My biggest concern is that builders, who are, for the most part, “the good guys” and who will always try to find a solution on the day, on the site with what they have been given, are going to take a while to learn to push back against this dumping of responsibility on them.
You are going to have to be prepared to say “no”, and “I need more detail on this”, because if you don’t the trend towards being sued for negligent construction leading to defects is going to continue.
The RMBF will continue to push the builders’ viewpoint to government and its departments, even in the face of big business that is pushing to ensure it isn’t included in the restatement of accountabilities in the Act.
We will also continue to push for, and assist in any way we can, the development of a regime of appropriate insurances for members that addresses the risks they face.
For me, I’ll be watching from afar with interest. Thanks guys for the laughs and the learning.
