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    Where architects may be liable for defects under new NSW home building laws

    David Wheeldon

    New laws around home building and warranty in NSW note that architects and design consultants could be held accountable in cases of defects and statutory warranties.

    The new laws, which the NSW Government says are intended to protect homeowners when they renovate, build or buy their home, started on 15 January 2015.

    A cornerstone of the new the Home Building reforms is said to be the new ‘major defect’ definition, which came after extensive consultation.

    “For the first time, the law recognises fire safety and waterproofing issues as major elements in a building’s structure,” NSW Minister for Fair Trading, Matthew Mason-Cox said.

    “By including fire safety systems and waterproofing as major elements of the building, the new definition broadens the scope of what may be considered a ‘major defect,’ and provides access to the six year warranty period, offering consumers greater protection in these two very important areas.

    “The new laws clearly define statutory warranties to avoid costly litigation over defective work. The warranty period for major defects continues to be six years and two years for all other defects.’’

    Fair Trading’s explanation of the changes, under the section ‘Disputes, defects and statutory warranties’ states:

    “The existing defence remains and a new defence is provided.
    “If a consumer claims a breach of a statutory warranty, the builder or tradesperson may defend the claim if defective work resulted from reasonable reliance on the written instructions of a professional acting for and engaged by the consumer before the work commenced. The professional may be an architect, engineer, surveyor or someone else with specialist or expert knowledge relevant to residential building work, and must be independent of the builder or tradesperson.”

    Whereas the previous law was:

    “If a consumer claims a breach of a statutory warranty, the builder or tradesperson may defend the claim on the basis that the defective work was the result of what the consumer instructed them to do and which was contrary to the builder or tradesperson’s written advice to the consumer.”

    Visit NSW Fair Trading for more information on the new laws.

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