"JUDICIAL REMEDIES FOR CONSTRUCTION DEFECTS:COMMON LAW, EQUITY OR STATUTE?"
Summary Written by: Sarah Redding, Clerk at the Building Disputes Tribunal
In March 2016, visiting King’s College London Professor Philip Britton presented to members of the Society of Construction Law New Zealand on judicial remedies for construction defects.
Professor Britton’s paper discusses judicial remedies for construction defects, with reference to a recent case experience in which he represented a group of residential first-home buyers in a London development with multiple overt and latent defects. In exploring the various options available to owners, he explores the different approaches to judicial remedies taken in the UK and Australasia under common law, equity and statute.
A brief summary of Philip Britton's recent paper follows. A copy of the full paper can be accessed here
Key Points
The issue of dealing with construction defects is a problem faced by many home owners. However, outside of contractual provisions which provide for rectification, judicial assessment of what remedy is appropriate and how to assess quantum (if damages are claimed) is unclear, and provides claimants with little certainty as to whether to pursue their claim.
Beyond the uncertainty of appropriate judicial remedies, when compared with New Zealand and Australasian statutes aimed at protecting consumers and home owners, English law has little to no statutory provisions affording such protection. New Zealand has developed considerable legislative protection for consumers in the construction industry, under statutes including the Construction Contracts Act 2002 and the Weathertight Homes Resolution Services Act 2006. Further, unlike New Zealand, standard form contracts for residential properties in the United Kingdom are entirely silent on addressing build quality or defects issues, and thus afford little protection to consumers.
Professor Britton’s case experience highlights how poorly English law protects consumers’ rights as claimants, compelling recourse to Court to protect their interests in a system where time and money strongly favour defendants.