For something to be proven as defamatory it has to be a lie or untruth.
As long as everything you have said is an honest and factual account of your dealings with the company and it's employees and owners then nothing defamatory (libelous) has been put in print.
If they choose to litigate it may cost them even more.
One would think this is the first salvo in trying to get you to back down.
Good luck and keep up the good fight.
Added: "proven as"
The parties have reached a mutual understanding in resolutio
Page 2 of 12
Good luck man! Hope it all works out for you. Can't believe there's builders out there just do this sort of crap and get away with it, so crazy!!
In regards to wisdom homes, they actually were taken to the ACCC and were forced to remove the clause form their contract that did not allow customers to post here or on product review, so while you currently see the end result of that ruling, they had gagged all their customers for over 5 years until the little people fought back....
Yep. They also had to abide by a number of conditions imposed on them by the ACCC.
In the last few days Wincrest has through their lawyer advised that the items issued in both mine and my structural engineers reports are not in fact defects but unfinished works.
Have you discussed this with your structural engineer?
Hi SejaeD
Have you consulted a lawyer about the letter sent to you by your builder's lawyer? I am not a lawyer but in Victoria a corporation that employs 10 or more persons cannot be defamed. Section 9 Defamation Act 2005 (Vic)
Certain corporations do not have cause of action for defamation
(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
(2) A corporation is an excluded corporation if—
(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
(b) it employs fewer than 10 persons and is not related to another corporation—
and the corporation is not a public body.
See
http://classic.austlii.edu.au/au/legis/ ... 99/s9.html
How many employees does your builder employ?
Have you consulted a lawyer about the letter sent to you by your builder's lawyer? I am not a lawyer but in Victoria a corporation that employs 10 or more persons cannot be defamed. Section 9 Defamation Act 2005 (Vic)
Certain corporations do not have cause of action for defamation
(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
(2) A corporation is an excluded corporation if—
(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
(b) it employs fewer than 10 persons and is not related to another corporation—
and the corporation is not a public body.
See
http://classic.austlii.edu.au/au/legis/ ... 99/s9.html
How many employees does your builder employ?
The letter appears to be written as person v person.
Geez mate looks like your going through a nightmare. As someone whose shopping around right now to build I'm glad my shortlisted builders have nothing like this going on anywhere that I can find.
Hope you get a positive resolution from all of this.
I think you'll find that NSW defamation laws are the same as noted about VIC and applying to small company's only. I believe the NSW Government did a review of the laws last year, but it wasn't changed.
Hope you get a positive resolution from all of this.
I think you'll find that NSW defamation laws are the same as noted about VIC and applying to small company's only. I believe the NSW Government did a review of the laws last year, but it wasn't changed.
The letter appears to be written as person v person.
I think that you are right.
In order for an individual to sue for defamation I would have thought the individual needed to have been named and identified.
The OP needs to ensure no individual has been named on here. And it might be a good idea to remove names from all letters copied on here or just remove them altogether.
The OP needs to ensure no individual has been named on here. And it might be a good idea to remove names from all letters copied on here or just remove them altogether.
I think it's just the way the solicitor wrote the letter. In the other thread the front page is posted and it says we represent Mr XXXX the owner of Wincrest Homes. So it seems they are coming from the business point of view.
Not hard to figure out who Mr XXXX is, quick google will tell you who owns Wincrest Homes.
Not hard to figure out who Mr XXXX is, quick google will tell you who owns Wincrest Homes.
Please be reminded that individuals are liable for their own postings as agreed upon when joining this community.
Therefore, we urge members to be mindful of defamation laws at all times before publishing content.
In addition, as per our Forum Guidelines, individuals may not be named for privacy reasons.
Should you have any general questions please let us know and for legal questions we recommend seeking legal advice where required.
Therefore, we urge members to be mindful of defamation laws at all times before publishing content.
In addition, as per our Forum Guidelines, individuals may not be named for privacy reasons.
Should you have any general questions please let us know and for legal questions we recommend seeking legal advice where required.
In order for an individual to sue for defamation I would have thought the individual needed to have been named and identified.
An individual only needs to be able to be identified. I haven't read the 'other thread'.
It also depends on how something has been stated but a person is entitled to publish an opnion based on fact, personal experience and is in the public interest.
so they are claiming defamation, but they wont win as your only telling the truth, would they be happy to show your level of work quality to propective clients,no way as any reasonable client would run after looking at their work,their entitled to a reputation built on the truth,not what they perceive as wanted,truth is not defamation especially when basically no one would agree that the works are not up to code,of poor quality.
There are also a number of other damning online reviews from easily contactable customers.
EDIT:
Simon, I have just read your other posts and as per what I understand, the issue to me appears to be around the tradies sometimes questionable workmanship and an apparent lack of QC due to Wincrest not employing a suitably qualified site supervisor that would arguably have otherwise allowed faults to be identified and satisfactorily rectified in a timely manner.
You have also apparently sought counsel and direction from other appropriately qualified industry professionals and have also expressed personal opinions in the public interest based on the professional advice you have received and your own experience which reaches beyond your own build.
I would not consider many of the faults shown in the published photos as being "unfinished works".
You have also posted"Well through research we have discovered that the supervisor allocated to our job is not licenced to supervise home construction so we have reported him to fair trading." Are you sure that this is a requirement because here in Victoria it isn't although most assume that it is. Regardless, a builder employing an unqualified site supervisor to oversee a new house construction is not good practice in my opinion. You might also want to check how many other houses he was supervising at the same time.
It is actually a near to if not impossible task for one person to know the regulatory compliance for several trades.
EDIT:
Simon, I have just read your other posts and as per what I understand, the issue to me appears to be around the tradies sometimes questionable workmanship and an apparent lack of QC due to Wincrest not employing a suitably qualified site supervisor that would arguably have otherwise allowed faults to be identified and satisfactorily rectified in a timely manner.
You have also apparently sought counsel and direction from other appropriately qualified industry professionals and have also expressed personal opinions in the public interest based on the professional advice you have received and your own experience which reaches beyond your own build.
I would not consider many of the faults shown in the published photos as being "unfinished works".
You have also posted"Well through research we have discovered that the supervisor allocated to our job is not licenced to supervise home construction so we have reported him to fair trading." Are you sure that this is a requirement because here in Victoria it isn't although most assume that it is. Regardless, a builder employing an unqualified site supervisor to oversee a new house construction is not good practice in my opinion. You might also want to check how many other houses he was supervising at the same time.
It is actually a near to if not impossible task for one person to know the regulatory compliance for several trades.
sejaeD - hope all is going ok at your end?
I suspect he may have advised by his lawyer to stop posting here whilst this is ongoing??
There are calls for a building royal commission weekly
Couple's building nightmare renews group's call for royal commission
The way battlers and punters are being ripped off and then gagged makes me feel sick to the core
Couple's building nightmare renews group's call for royal commission
The way battlers and punters are being ripped off and then gagged makes me feel sick to the core
A Royal Commission's terms of reference are segmental, an all encompassing Royal Commission into the industry is impossible unfortunately and apportioning importance on which industry segment and the terms of reference would be a most difficult task.
The parties have reached a mutual understanding in resolution of each of the other parties concerns
Hi Everyone
Sorry that I haven't been able to provide an update for the last month or so.
The latest news is that Wincrest are now demanding that a significant portion of my posts on this website be deleted.
So if in coming days you see that my posts have been removed this is why.
I just want to reiterate that the reason for posting here has always been to give an honest account of our building experience with Wincrest. I sincerely believe that this forum is a useful tool for people to share experiences and advice on renovating and building, and I have taken pleasure in helping a number of members resolve technical issues during my time here.
I also believe that this forum is an incredibly useful resource to make recommendations on trades, suppliers and builders to help people through the building process.
Having said that, the last 6 months has been a nothing short of a nightmare for my wife and I.
We are a young family with 4 children including an 11 month old baby. We chose Wincrest Bespoke because they assured us in writing that they were a bespoke custom business who used better quality trades then their volume housing business and on this basis we trusted them to build our dream forever home.
The reality was that whilst the design process was good, the construction was handled by the same trades and management who handle the volume housing business. I can also honestly say that these trades were some of the worst quality that I have seen in over 20 years in the building industry. (As background in a former life I was the NSW General Manager for Metricon's medium density business, so I do have experience managing trades and assessing quality. I have also worked for Clarendon and related construction companies so I do understand the average to above average quality provided by volume home builders and my expectations were set along these lines.)
To this day they are yet to apologise for the stress and financial strain they have caused my family.
For the reasons outlined above and many more that I have already covered, it has been our honest and genuine experience that Wincrest has not built in accordance with Australian Standards in all areas, and that their customer service has been appalling.
I hope everyone has a much better experience on their building journey than we have.
Till next time
Simon
Sorry that I haven't been able to provide an update for the last month or so.
The latest news is that Wincrest are now demanding that a significant portion of my posts on this website be deleted.
So if in coming days you see that my posts have been removed this is why.
I just want to reiterate that the reason for posting here has always been to give an honest account of our building experience with Wincrest. I sincerely believe that this forum is a useful tool for people to share experiences and advice on renovating and building, and I have taken pleasure in helping a number of members resolve technical issues during my time here.
I also believe that this forum is an incredibly useful resource to make recommendations on trades, suppliers and builders to help people through the building process.
Having said that, the last 6 months has been a nothing short of a nightmare for my wife and I.
We are a young family with 4 children including an 11 month old baby. We chose Wincrest Bespoke because they assured us in writing that they were a bespoke custom business who used better quality trades then their volume housing business and on this basis we trusted them to build our dream forever home.
The reality was that whilst the design process was good, the construction was handled by the same trades and management who handle the volume housing business. I can also honestly say that these trades were some of the worst quality that I have seen in over 20 years in the building industry. (As background in a former life I was the NSW General Manager for Metricon's medium density business, so I do have experience managing trades and assessing quality. I have also worked for Clarendon and related construction companies so I do understand the average to above average quality provided by volume home builders and my expectations were set along these lines.)
To this day they are yet to apologise for the stress and financial strain they have caused my family.
For the reasons outlined above and many more that I have already covered, it has been our honest and genuine experience that Wincrest has not built in accordance with Australian Standards in all areas, and that their customer service has been appalling.
I hope everyone has a much better experience on their building journey than we have.
Till next time
Simon
Well, legally they can't be demanding that, we are in free press country, aren't we?
The fact they are requesting them will work well against them in Class Action law suit.
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