Water-proofing and liquidated damages

NELSTU · Feb 10, 2024 12:46 pm

We are building using a large project home builder in NSW. Our build commenced in October 2022, and we have just reached lock-up stage, so we are about 16 months overall and two Summer industry shut-downs.

A critical issue is the water-proofing the wet areas. So far, we had a private inspector review the water-proofing twice, and it is still defective. One of the key issues is that they failed to clear the area before applying the primer and water-proofing, things like broken screws were painted over. Our inspector was disappointed by the quality of this work.

Are there issues with getting quality water-proofers in NSW right now? From what I can work out, you do need to be properly licensed to do this work in NSW, however it does not appear to be technical, in the same way that plumbing and carpentry are.

Further to this, given the delays we have had with our build, I am interested to see how liquidated damages work. There was a big delay after the frames were delivered, they sat on the slab for almost 3 months before carpenters turned up. At what point do we raise liquidated damages? The last 12 months has not seen too much adverse weather, all progress payments paid within three days, so I don't know what we could have done better?

Our site supervisor does not answer calls and if he bothers to respond, there is a lengthy delay. I guess we would have been better off going to a custom builder!

BuildingandLegal · Feb 11, 2024 12:12 am

Waterproofing is a critical stage inspection, however most certifiers are not competent to inspect it and simply don't know what they are looking at. We have completed numerous inspections where the question was when would the membrane fail rather than if it failed. I would suggest have your inspector produce his report along the lines of (1) what was found on site (2) how it deviated from the relevant standard at the time of granting the building permit (AS3740 - 2010). (3) What the manufactures installation guide requires and finally (4) What needs to be done to make it comply with the standards & manufactures guide. Issue the report to the builder and certifier by email (get a read receipt & delivery receipt) advising the work is defective and non-compliant, that they are on notice that if it is not rectified within 14days you will issue them with a notice of breach under the contract for illegal work and you will forward the report to the office of the building commission.

With regard to LD's these are not due until the contract has reached PC. But in NSW (subject to which contract you use) the builder is required to issue with a notice of delay within 10 days of the delay occuring, and their justification needs to be a valid reason!
Hope this helps

SaveH2O · Feb 11, 2024 7:53 am

BuildingandLegal

(3) What the manufactures installation guide requires and finally (4) What needs to be done to make it comply with the standards & manufactures guide.

It is important to note that while the National Construction Code (NCC) provides minimum guidelines and standards, it does not explicitly mandate following manufacturers’ guides/instructions as this provision was deleted from the NCC several years ago.

While it is indeed wise to reference a manufacturer's Guide/instructions in any dispute, they should never be presented as being regulatory.

Ashington Homes · Feb 14, 2024 5:00 am

NELSTU

We are building using a large project home builder in NSW. Our build commenced in October 2022, and we have just reached lock-up stage, so we are about 16 months overall and two Summer industry shut-downs.

A critical issue is the water-proofing the wet areas. So far, we had a private inspector review the water-proofing twice, and it is still defective. One of the key issues is that they failed to clear the area before applying the primer and water-proofing, things like broken screws were painted over. Our inspector was disappointed by the quality of this work.

Are there issues with getting quality water-proofers in NSW right now? From what I can work out, you do need to be properly licensed to do this work in NSW, however it does not appear to be technical, in the same way that plumbing and carpentry are.

Further to this, given the delays we have had with our build, I am interested to see how liquidated damages work. There was a big delay after the frames were delivered, they sat on the slab for almost 3 months before carpenters turned up. At what point do we raise liquidated damages? The last 12 months has not seen too much adverse weather, all progress payments paid within three days, so I don't know what we could have done better?

Our site supervisor does not answer calls and if he bothers to respond, there is a lengthy delay. I guess we would have been better off going to a custom builder!

Hi Nelstu

There is a major Australian builder doing two homes in my neighbourhood. I wasn't going to name them but what the heck.

Metricon you need to build faster!

The talk of the neighbour hood ( I live in a small community, most people know each other) is that one house started in July 2021, so roughly 30 months ago and they look like they are approximately at the same stage as my build which started in August 2023 and included a pool.

Metricon, if you have anyone reading this thread I am speaking about the house in Kippara Ave West Pymble. Unless there is a problem with the client paying or something, it is just far too slow. Hit me up and I shall give you some tips. My number is still in your files.

Also whilst I am at it, the one you built in Bolwarra Ave also took way too long ( over two years for a predominantly weatherboard and hebel home). You might need a new site manager to service this area.

As to your waterproofing, it is a speciality trade when done correctly.

Problem is your builder needs to pay the appropriate amount of money to have a high quality job done. From what you have described your waterproofer is probably on a low fixed rate and hasnt been bothered to clean and prepare the subfloor properly. That is someone else's job to worry about.

Anyhow, all the best in getting your issues resolved and your build finished.

Off to work now

Cheers

Simeon

Kippers01 · Feb 15, 2024 10:55 am

Further to the comments about waterproofing, on my build Metricon's waterproofing contractor 'Dryman' required 3 return visits to get the job done correctly. The first time they applied the waterproofing to a dirty, dusty floor and it didn't stick. The next 2 times they simply painted over the original material. Such was the poor adhesion It was possible to lie on floor gently blowing on the material to lift it up. I insisted they remove this material and clean and prepare the floors properly, then personally checked this before the 4th and final applications. Interestingly Dryman had prepared and dated their 'waterproofing guarantee' on the first visit. After consulting a waterproofing material supplier, I suspect my experience was common for other Metricon customers at the time

Kippers01 · Feb 15, 2024 2:25 pm

NELSTU

We are building using a large project home builder in NSW. Our build commenced in October 2022, and we have just reached lock-up stage, so we are about 16 months overall and two Summer industry shut-downs.

A critical issue is the water-proofing the wet areas. So far, we had a private inspector review the water-proofing twice, and it is still defective. One of the key issues is that they failed to clear the area before applying the primer and water-proofing, things like broken screws were painted over. Our inspector was disappointed by the quality of this work.

Are there issues with getting quality water-proofers in NSW right now? From what I can work out, you do need to be properly licensed to do this work in NSW, however it does not appear to be technical, in the same way that plumbing and carpentry are.

Further to this, given the delays we have had with our build, I am interested to see how liquidated damages work. There was a big delay after the frames were delivered, they sat on the slab for almost 3 months before carpenters turned up. At what point do we raise liquidated damages? The last 12 months has not seen too much adverse weather, all progress payments paid within three days, so I don't know what we could have done better?

Our site supervisor does not answer calls and if he bothers to respond, there is a lengthy delay. I guess we would have been better off going to a custom builder!

Liquidated damages should be set out in in your contract as a $ amount per working day, or day, or week delay beyond the contract duration. You can offset this from the final payment. The builder needs to advise you in writing of the specific delay and reasons why at the time (within 10 working days, i think) and you need to confirm acceptance. If they don't do this you can claim the appropriate delay offset. It is not sufficient for the builder to just look up meteorolgical records and simply claim 'rain days' at the end - unless your contract specifies this.

Wolfgang Cash · Feb 24, 2024 6:38 pm

Kippers01

NELSTU

We are building using a large project home builder in NSW. Our build commenced in October 2022, and we have just reached lock-up stage, so we are about 16 months overall and two Summer industry shut-downs.

A critical issue is the water-proofing the wet areas. So far, we had a private inspector review the water-proofing twice, and it is still defective. One of the key issues is that they failed to clear the area before applying the primer and water-proofing, things like broken screws were painted over. Our inspector was disappointed by the quality of this work.

Are there issues with getting quality water-proofers in NSW right now? From what I can work out, you do need to be properly licensed to do this work in NSW, however it does not appear to be technical, in the same way that plumbing and carpentry are.

Further to this, given the delays we have had with our build, I am interested to see how liquidated damages work. There was a big delay after the frames were delivered, they sat on the slab for almost 3 months before carpenters turned up. At what point do we raise liquidated damages? The last 12 months has not seen too much adverse weather, all progress payments paid within three days, so I don't know what we could have done better?

Our site supervisor does not answer calls and if he bothers to respond, there is a lengthy delay. I guess we would have been better off going to a custom builder!

Liquidated damages should be set out in in your contract as a $ amount per working day, or day, or week delay beyond the contract duration. You can offset this from the final payment. The builder needs to advise you in writing of the specific delay and reasons why at the time (within 10 working days, i think) and you need to confirm acceptance. If they don't do this you can claim the appropriate delay offset. It is not sufficient for the builder to just look up meteorolgical records and simply claim 'rain days' at the end - unless your contract specifies this.

It's unlikely that in any sort of reasonable arbitration the builders' claim for lost days that are backed up by meteorogical records would be dismissed.

Kippers01 · Feb 26, 2024 12:22 pm

It worked for me in getting all non notified rain days removed from the builders claim, although the LDs was only $50/day. The contract usually requires the builder to explain at the time specifically how the weather delayed the works.