VCAT, owner wins damages for garage slab heave!

Slab Heave Recipient · Aug 13, 2014 11:42 pm

StructuralBIMGuy

Firstly, Iam not a big fan of licencing trades and bureaucracies. It reminds me of the Georgian era (England 17C) Art and Craft Guilds which resulted in the new working poor classes..unaffordable homes & Indentured Apprentice labour.
In Wa Engineers Inspect, sites, Slabs, Reo, Structural Steelwork, Non Compliance, Wind ,Cyclone framing and issue repair notices on behalf of clients....ive seen some abuse of that power
If an engineer stops a concrete pour he may never work for that builder again so you want to inspect the works well in advance.
Finally, I dont like getting involved in disputes as I see both sides of the ledger and basically we all make mistakes which need to be dealt with immediately.
In order to avoid mistakes I take great care in presenting the best solutions to clients this involves data, Simplified engineering (3D) details/drawings , checklists and Staff training programs, etc,etc.
Seen a lot of changes with technology some are helpful some not so, same goes with new materials and construction methods.LOL layers on layers where does it stop?
apologies for the rant

Using this mindset, lets hypothetically change the industry we are discussing and replace it with the finance industry. If you were to obtain financial advice from someone that worked in the industry would you expect that the adviser was qualified to provide that information? Because one of the major differences in having an industry with governed licencing & bureaucracies is that the consumer is protected against negligence in tort. Additionally, the person who committed the offence is fined substantually and their licence revoked. Thus, not allowed to work as a financial advisor. Do these licences and laws provide protection for the receiving consumer??????

Now.... tell me what the differences are between the two industries if each of the industries caused an action that was negligent & didn't follow the industry standards?

I believe that the consumer is protected in one & in the other they are once again punished to try and obtain justice - additionally as not compensated (or sufficiently), and the their business trade continues regardless.

Now imagine if they didnt have to obtain these qualifictions/licences etc?

SaveH2O · Aug 14, 2014 2:10 am

building-expert

One of the issues was that contractor was claiming reliance on cement and concrete association that recommended 1degree fall for paving, but that is not consistent with BCA and BCA prevails.

I have never understood why there are various industry guidelines used that don't adhere in full to the current BCA and mandated AS. If these associations want to print their own self endorsed guidelines, then why aren't they updated when required to reflect modified or new regulations? It just seems crazy to me that they would put their members in positions where they are at fault for doing non compliant work because they have trustingly followed their industry guidelines.

building-expert · Aug 14, 2014 7:04 am

SaveH2O

building-expert

One of the issues was that contractor was claiming reliance on cement and concrete association that recommended 1degree fall for paving, but that is not consistent with BCA and BCA prevails.

I have never understood why there are various industry guidelines used that don't adhere in full to the current BCA and mandated AS. If these associations want to print their own self endorsed guidelines, then why aren't they updated when required to reflect modified or new regulations? It just seems crazy to me that they would put their members in positions where they are at fault for doing non compliant work because they have trustingly followed their industry guidelines.

I am glad that you brought up this point because the contractor in this case genuinely believed he was not at fault because he was following his industry's guidelines. He wasn't a "bad guy" just misled by the organisation he was meant to trust. In the end I could not help but feel empathy for him however he was pushing a lost cause.

However it revealed widespread lack of basic knowledge in the industry, I know because defective paving and drainage is the most common defect in new home construction.

SaveH2O · Aug 14, 2014 10:09 am

building-expert

.....defective paving and drainage is the most common defect in new home construction.

I can certainly attest to endemic drainage non compliance. Having a critical AS that has flawed mathematical calculations as per several previous posts in other threads is also a farce.

viewtopic.php?p=1145148#p1145148

Lex · Aug 19, 2014 11:52 am

building-expert

... widespread lack of basic knowledge in the industry ...

100% agree, my own suspicion and later on experience. And how does one become a concretor? Buy buying a few tools and spraying "concretor" on his little truck and printing his mobile number?

And registering himself a licence with the Fair Trading??

building-expert · Aug 20, 2014 9:19 am

Lex

building-expert

... widespread lack of basic knowledge in the industry ...

100% agree, my own suspicion and later on experience. And how does one become a concretor? Buy buying a few tools and spraying "concretor" on his little truck and printing his mobile number?

And registering himself a licence with the Fair Trading??

It's not just with the tradies, I find incompetence or lack of care at all levels, builders, building surveyors, building designers, engineers, private inspectors, building inspectors, pretend building experts, building commission, it does not stop.

One of my clients who is aircraft maintenance engineer said that if we maintained aircraft the same as we build homes there would be daily crashes.

Lex · Aug 22, 2014 9:09 pm

Absolutely!

tkormich · Aug 27, 2014 10:49 pm

Hi guys

Well, the story did not end there unfortunately.
And now I know why this guy(and his "company") was not even serious about defending himself in VCAT. He simply was always sure that even if a decision was made against him he would not have to pay me a single cent anyway. After VCAT decision was made, on which he now owes me substantial amount of money, he simply stopped all communication with me. Meanwhile, he is still running his business as if nothing happened! His website is still up, phones are still answered in anticipation of new clients, business as usual!
I called VCAT and they told me to go to Magistrate Court. But can anybody suggest what are the chances for this guy to get away with it now? Because it just keeps costing me more and more time and money with no end in sight. My guess is what he will be trying to do now is to show that his company does not have any property or income. Or maybe close his company and reopen it under a different name. I don't know, some sort of shenanigans like that. I also have reasons to suspect this is not his first time of doing this and that he has done it before to other people.

I just don't get it. Is that really all that easy?! Why then anybody should bother with VCATs, Magistrate Courts etc which cost a lot of time and money if respondents can easily get away with it and nothing is really enforceable? Anybody has any experience of enforcing VCAT orders in similar cases?

Ponzu · Aug 27, 2014 11:10 pm

Apply to have him wound up. See what reaction that gets lol

tkormich · Aug 27, 2014 11:22 pm

Ponzu

Apply to have him wound up. See what reaction that gets lol

If only it was that simple, mate.

Ponzu · Aug 28, 2014 12:15 am

My friend, applying to have somone wound up off the back of a unpaid judgment debt is a piece of
cake . Youre already pouring money on it what's little more to actually finish the job. You don't need a lawyer for this.

Source: my many years of doing this to debtors where I work before being promoted to less nasty jobs.

building-expert · Aug 28, 2014 7:01 am

One of my client's got 10K award in VCAT for defective earthworks on his farm (I did the expert reports) but the respondent would not pay up.

He kept saying that people would loose jobs if he was forced to pay
Then a Magistrate order was followed by Sheriff's visit to take away his trucks and machinery.

It's only then he wrote out a cheque for 10K

My client was a dentist and respondent his customer.

My last piece of expert advice was to pull out his teeth when he comes again.

Leonardo_23 · Sep 18, 2014 12:34 am

Good stuff B-E, it's good to hear of outright wins.

Heave sure is a problem especially over in the western (Vic.) suburbs.

I understand that for larger amounts claimed for pull-downs, that VCAT is restrained by precedents such as Belgrove v Eldridge (concerning an Olympic class swimming pool and similar diving pool) to award only what is a reasonable cost to rectify any particular defect (reasonable - now there's a word). Some of these homes virtually need to be pulled down to rectify them properly, often (I've heard) because the soil reporters ignored Appendix D of the footing code AS2870.

At the moment thousands of people seem to be left with nowhere to go because they have decrepit houses with mega problems caused by over 100mm out-of-level slabs following heave, ending up with houses they can't sell.

Come on solicitors... come on barristers... come on QC's - get a group action based on people's rights to the High Court ASAP.

Leonardo_23

building-expert · Sep 18, 2014 6:39 am

Leonardo_23

Good stuff B-E, it's good to hear of outright wins.

Heave sure is a problem especially over in the western (Vic.) suburbs.

I understand that for larger amounts claimed for pull-downs, that VCAT is restrained by precedents such as Belgrove v Eldridge (concerning an Olympic class swimming pool and similar diving pool) to award only what is a reasonable cost to rectify any particular defect (reasonable - now there's a word). Some of these homes virtually need to be pulled down to rectify them properly, often (I've heard) because the soil reporters ignored Appendix D of the footing code AS2870.

At the moment thousands of people seem to be left with nowhere to go because they have decrepit houses with mega problems caused by over 100mm out-of-level slabs following heave, ending up with houses they can't sell.

Come on solicitors... come on barristers... come on QC's - get a group action based on people's rights to the High Court ASAP.

Leonardo_23

That is a great point you brought up.

Belgrove V Eldridge is actually a common law decision and I think VCAT gets it wrong WHY?
Because Act overrides common law and the most relevant Act is DBCA1995 which states
The objects of this Act are—

(a) to provide for the maintenance of proper standards in the carrying out of domestic building work in a way that is fair to both builders and building owners;

So how is pulling down a house that does not meet standards not reasonable? How will you maintain standards if you don't pull down non complying work?

Whilst Belgrove v Eldridge might have been a great common law decision in my opinion it is killed off by DBCA1995, It's just that VCAT is asleep.

All the same I think that the ground is beginning to shift in favour of homeowners and not soon enough

Stewie D · Sep 18, 2014 12:03 pm

Quote:

My client was a dentist and respondent his customer.
My last piece of expert advice was to pull out his teeth when he comes again.

Haha good advice to your client BE!

I'd also advise a lobotomy whilst under the anaesthetic. :lol:

Stewie

building-expert · Sep 18, 2014 4:26 pm

I have considered also giving that advice but then recipient would be perfectly primed for politics

insider · Sep 19, 2014 12:07 am

Leonardo_23

Good stuff B-E, it's good to hear of outright wins.

Heave sure is a problem especially over in the western (Vic.) suburbs.

I understand that for larger amounts claimed for pull-downs, that VCAT is restrained by precedents such as Belgrove v Eldridge (concerning an Olympic class swimming pool and similar diving pool) to award only what is a reasonable cost to rectify any particular defect (reasonable - now there's a word). Some of these homes virtually need to be pulled down to rectify them properly, often (I've heard) because the soil reporters ignored Appendix D of the footing code AS2870.

At the moment thousands of people seem to be left with nowhere to go because they have decrepit houses with mega problems caused by over 100mm out-of-level slabs following heave, ending up with houses they can't sell.

Come on solicitors... come on barristers... come on QC's - get a group action based on people's rights to the High Court ASAP.

Leonardo_23

Leonardo 23
Interested to hear more about the soil reporters ignored Appendix D of the footing codes.How has that contributed to
the heave problem ?