How and Why Building Cases are Lost 3

Monday, March 10th, 2014
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Both financially and emotionally, the impact associated with losing building cases cannot be underestimated.

Throughout nearly three decades of practising construction law, I have observed a number of practices which unfortunately increase the likelihood of this happening.

These are:

(1)    Not engaging a specialist construction lawyer.

In the medical profession, general practitioners deal with relatively straightforward cases but refer more complex matters in areas such as dermatology, cardiology and podiatry to specialists in these fields.

Likewise, in the legal profession, complex building disputes should be handled not by general legal practitioners but rather those who specialise in the construction industry and have an intimate understanding of relevant building regulations and seminal cases as well as the ins and outs of the jurisdiction in question.

(2)    Not engaging a top expert witness.

Recent years have seen a concerning trend whereby parties to disputes surrounding quality of workmanship engage ‘hired guns’ as expert witnesses to support their case without due consideration about whether the individual in question has both the appropriate degree of technical dexterity and the capacity for professional objectivity for his or her testimony to carry a sufficient level of weight at trial.

Often times, these people get ‘poleaxed’ during cross examination and the case is lost.

Depending on the nature of the alleged building defect involved, the best person to represent you could be an engineer, an architect or a building surveyor. These people are crucial to your case and should be chosen carefully.

(3)    Failure to get letters of advice and status reports

Back when I used to work for major insurance companies, a critical document prepared early in the engagement outlined not only the facts of the case and the legal issues involved but also the chances of success as well as the likely payouts and costs involved in not only the most likely scenario but also the best and worst case scenarios.

Known as letters of advice, these documents help clients make informed assessments about the likelihood of successful outcomes as well as the costs of chasing such outcomes and should be provided by lawyers at the beginning of the case.

Likewise, clients should also ask for regular status reports providing updates in relation to the above matters as the case progresses.

(4)    A desire for revenge

Legal cases are decided on the basis of applicable law, and any which are brought about primarily out of anger or other emotions as opposed to sound legal argument are unlikely to succeed irrespective of how strongly the aggrieved party feels they have been wronged.

Confucius famously quipped “if you want revenge, dig two graves.”

(5)    Refusal to accept that a case is weak

Possibly the greatest cause of failure in building industry litigation revolves around a lack of willingness on the part of a client to accept when their case is not strong as well as a lack of courage on the part of their lawyer to speak frankly and hammer home the reality when this is indeed the case.

So, before you engage in your next building case, think seriously about these traps and how you might avoid them.

And remember, if you want to put a fire out, don’t fan it. Likewise, avoid dowsing it with the accelerants of anger, poor choice of expertise and myopia.

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  1. Peter Micevski

    Lawyers definitely need to manage their client's expectations.

  2. Paul

    Effective penalties and regulatory enforcement by regulators and bodies, (paid by consumer’s fees and taxes, to protect consumers), would greatly reduce these cases. There is no control or accountability and builders know and take full advantage of their impunity.

    The Victorian Building Commission conducted an inspection on the mess we were left with and it was damning. They did nothing.

    This ‘builder’ has a VCAT track record for his poor delivery. Building Commission and Practitioner’s Board did nothing.

    This ‘builder’ had multiple successful warranty claims against his work. Regulators did nothing and allowed him ongoing registration.

    This ‘builder’ eventually liquidated to avoid financial and damages accountability and the current legal system allows him to do this repeatedly!
    Despite liquidation and a shocking track record, regulators allowed him ongoing registration, misleading subsequent diligent homeowners into believing he was trustworthy and competent!

    The hypocrisy of this system, and this ‘builder’ with his shocking record of dishonesty and incompetence, who is now inspecting the work of others and offering representation in VCAT and he is permitted to do this!

    Aware of the scale of this problem, I am forced to believe that this lack of control and regulatory enforcement can only be a deliberate ploy to sustain these pseudo control bodies, legal fraternities and building industry with ongoing employment through so called ‘conflict resolution’, legal representation.
    All those costly ‘specialist’ reports mentioned in this article and perpetual building repairs and maintenance to the initial defective and incompetent construction!

    Unlike builders who have slick industry association legal teams at their disposal, the numerous families who have been so severely impacted by this lack of control, rarely have either the emotional fortitude or financial ability to employ these specialists, surveyors and least of all, prohibitively costly construction lawyers to represent them in court, especially where their costs are rarely recoverable and the builders merely liquidate and walk away from accountability.

    Trusting homeowners are like lambs to the slaughter when it comes to this industry!

  3. Gerrit duits

    Good advise Kim and Peter,
    wish I had run in like minded 30 years earlier !
    The information I provided, is so honest to the point , it helps me sleep better!
    please keep up the good work !