HIA: Your Site, Your Trades
Builder reminder – Don’t let your client, or their friends and family, work on your site
A regular scenario that HIA hears about from members is the builder who has been financially burnt, or worse, allowing their client, or the client’s family or friends, to carry out work or source their own materials for a building project. The damage can include lost payments, fixing or completing work done by others, or even, potentially being charged with an offence.
Many clients seem to have relatives or friends who work in the building industry. Some of these clients expect to save money and time by having these relatives and friends work on their building project. In addition, these clients find out that they can blame the builder if their relatives or friends don’t do their job properly.
When a client engages a builder who allows a client to supply their own materials or engage their own trades to work, they get the benefit of saving money without the risk of being responsible for their decisions. The builder in this situation gets paid less but still, ultimately, takes on responsibility for the work. This includes responsibility for defective or incomplete work that is not carried out by them, and for defective or noncompliant materials they did not source and possibly did not install.
Why does this happen?
In simple terms, builders get burnt because the legal system usually assumes that the builder will carry out and be responsible for all work at a building site. Once a builder’s name is on the contract and more importantly on the building permit, they take on all the risks and the blame even if they don’t do all the work.
Under Occupational Health and Safety laws the builder will be the main person responsible for safety at the site. If someone is injured, or worse, the first person blamed will be the builder. The duties under the OH&S laws cannot be delegated and cannot be necessarily avoided by saying the client was responsible.
The Building Act also assumes the builder is responsible for all work. If the builder’s name is on the building permit it is their work. If the relevant building surveyor finds building work that is not compliant, they may issue a direction to fix to the builder named on the building permit. The law requires them to issue that direction to the builder, even if the builder did not actually do that work. The law also bans the builder from charging the client for fixing this work as well. So, if your client or someone they appoint directly makes a mistake the builder not only has to fix it but also pays for the works.
Builders often get burnt by failing to identify the work they didn’t do and the materials they did not source directly. Often a variation, poorly prepared if prepared at all, is the only evidence that the builder allowed the client to do the work themselves. In such circumstances, it is not surprising that years later the builder can find the client, or the new owner of the home, suing them for defective work that they did not carry out. And finding themselves without clear evidence that it was not their work.
What to do?
The message to builders is clear. If you don’t want to be blamed or accountable for up to 10 years for work you didn’t do or materials you did not source you need to carry out your own work, engage your own trusted people, and source materials yourself.