If you are in a building or construction dispute, the first job is to protect your position before you respond. Deadlines under security of payment legislation are short, and a payment claim, a direction to rectify or a defects notice can each start a clock. Twomey Dispute Lawyers act for owners, builders, subcontractors and suppliers in Queensland, New South Wales and Victoria. Call 1300 286 578 and we will tell you what has to happen first.
Key takeaways
- A payment claim under security of payment legislation starts a strict deadline — if you do not respond in time you can lose the right to argue the amount.
- Building regulators can require a builder to rectify defective work, and there are time limits on when you can complain.
- Adjudication is fast, and the decision binds on payment even though the underlying dispute can still be litigated.
- Subcontractors have statutory ways to secure money owed up the chain, and all of them are unforgiving on timing.
- Most of the damage in a construction dispute is done in the first fortnight, before anyone calls a lawyer. Call 1300 286 578.
Can I sue my builder for defective work?
Usually yes, but suing is rarely the first step and often not the best one. Depending on the contract and where the work is, you may be able to complain to the building regulator and seek a direction to rectify, claim under the statutory warranties, or pursue the builder for breach of contract. Which of those gives you the best outcome depends on the defect, the money involved and how long ago the work was done — the time limits are different for each, they differ between states, and the shortest one governs.
What do I do if I have not been paid?
Act on the payment side of the law before the contract side. Queensland, New South Wales and Victoria each have security of payment legislation that gives you a fast route to recover progress payments through a payment claim, and the party you are claiming against has to respond within a short window or lose the right to dispute the amount. If a payment claim has been served on you the same clock is running the other way. The regimes differ between states, so the first questions are which one applies and what the dates are.
If a payment claim or a direction to rectify has landed, the deadline matters more than the argument. Call 1300 286 578.
Do I need a building contract lawyer before I sign?
It costs a fraction of what a dispute costs. Most construction disputes we see were decided by clauses agreed months earlier — variations, extensions of time, liquidated damages, retention and defects liability. A building contract lawyer reads those clauses against how your projects actually run, and tells you which ones will hurt you. We review standard-form contracts and bespoke ones, for owners engaging a builder and for builders and subcontractors signing up the chain. In the same way you’d want your broken leg treated by an orthopaedic surgeon, rather than a general practitioner, you want the expertise of a specialist litigator in a construction dispute, to avoid the possibility of tactical errors that can be irreversible later.
In a construction dispute, getting legal advice from a specialist in construction law is the best way to protect your interests. And the faster you take legal advice, the more likely it is that you won’t do anything to weaken your position accidentally. (Our clients often call us from site the moment things look serious because they know the difference it can make when they do the right things fast.)
How does adjudication work?
Adjudication is a statutory process that decides how much is payable now, quickly, without going to court. You apply, the other side responds, and an independent adjudicator gives a decision that binds on payment even though either party can still litigate the underlying dispute later. It suits progress-payment fights and cashflow pressure, and it is unforgiving on procedure — applications are lost on timing and form more often than on the merits. The detail differs between states, but the shape is the same.
The commercial approach to construction disputes and litigation
It can be tempting to fight the war on every front when you’re on the receiving end of accusations or you’re being treated unreasonably. However, the better choice in construction disputes and litigation is to take assertive action quickly on the points you can win. You’ll win the war faster and with fewer resources if you concentrate on the crucial battles. And the faster the dispute is over, the sooner you can return your attention to the business that matters.
The alternative can be disputes that stretch over months. Those disputes have a bottomless appetite for time and money, consuming the cashflow needed to fund other projects.
When you have swift, practical and commercial advice from specialist construction and building disputes lawyers, you give your business the best chance of an optimal result in the least amount of time.
What does a construction dispute cost?
It depends far more on how the dispute is run than on how big it is. A payment claim or a well-aimed letter can resolve a matter in weeks for a few thousand dollars; a defects fight run to a hearing can take a year and cost many multiples of that. We give you an estimate of likely spend at the start and update it as the matter moves, so you can decide whether the fight is worth having. Call 1300 286 578 for an assessment of your position.
Who we act for
Owners, builders, subcontractors and suppliers — and we act on both sides of the same kinds of disputes, which is the reason we can tell you early how the other side will see it. Owners come to us over defective or incomplete work and price increases on fixed-price contracts. Builders come to us over payment, variations and unreasonable defect claims. Subcontractors and suppliers come to us when money stops moving down the chain. We are members of the HIA, Master Builders Queensland and Master Builders Victoria.
Our construction dispute lawyers act for clients on the Gold Coast, in Brisbane, Melbourne and Sydney, and in regional centres across those states. Building and construction work is regulated differently in each — Queensland matters run through the QBCC and, where they go to a tribunal, QCAT; Victorian domestic building disputes go through Domestic Building Dispute Resolution Victoria before VCAT; New South Wales has its own security of payment regime and NCAT. Our home office is at Burleigh Heads on the Gold Coast, with lawyers in Brisbane, Melbourne and Sydney.
Construction dispute FAQs
Can I sue my builder for defective work?
Often you have several options rather than one: a complaint to the building regulator seeking a direction to rectify, a claim under the statutory warranties, or a breach of contract claim. The right choice depends on the defect, the amount and when the work was done, because the time limits are different for each and differ between states.
How long do I have to make a claim about building work?
There are several clocks and they run from different events — the contract limitation period, the statutory warranty periods and the regulator’s complaint periods — and they are not the same in every state. The shortest one governs in practice, so the safest approach is to have the dates checked as soon as you notice a problem.
What is a payment claim?
It is a formal claim for a progress payment made under security of payment legislation, and serving it starts a statutory process. The party receiving it has to respond with a payment schedule within a short period, and failing to respond in time can mean losing the right to dispute the amount claimed.
I have received a payment claim. What should I do?
Check the date it was served and diarise the response deadline before anything else, then get advice on whether the claim is valid and what your schedule should say. This is the most common way builders and principals end up paying money they did not owe.
What is a direction to rectify?
It is a notice a building regulator can give a builder requiring defective or incomplete building work to be fixed — in Queensland that is the QBCC. Owners can ask the regulator to investigate, and a builder who receives a direction has rights to have it reviewed.
Can my builder increase the price on a fixed-price contract?
Sometimes, but only where the contract allows it and the process in the contract has been followed. Rise-and-fall clauses, variations and cost-escalation provisions are all drafted differently, so the answer turns on the wording and on what was actually done at the time.
What are subcontractors’ charges?
In Queensland, a subcontractors’ charge is a way to secure money owed by claiming a charge over money still payable to the contractor above you. There are strict timeframes and formal requirements, and getting either wrong can defeat the charge. New South Wales and Victoria have different mechanisms aimed at the same problem.
How long does a construction dispute take?
A payment claim or a letter of demand can resolve a matter in weeks. Adjudication runs to a statutory timetable measured in weeks rather than months. A defects claim run to a tribunal or court hearing is usually a year or more.
Do you act for owners as well as builders?
Yes — owners, builders, subcontractors and suppliers. Acting on both sides is why we can tell you early how the other party is likely to approach it, and where they are exposed.
What should I do first in a construction dispute?
Stop, before you reply. Do not sign anything, do not agree to a variation and do not send an email conceding anything. Collect the contract, the payment history and the dates, and call us on 1300 286 578 so we can tell you which clock is running.
Take control of your dispute
Tell us what has happened and we will tell you what has to happen first. Call 1300 286 578 or get in touch.
